Randall Keith Jolly v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-386-CR
RANDALL KEITH JOLLY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Randall Keith Jolly of assault bodily injury to
a family member, and the trial court sentenced him to 120 days’ confinement
in jail. In six issues, Jolly argues that the trial court abused its discretion by
unconstitutionally restricting his cross-examination and attempted impeachment
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… See T EX. R. A PP. P. 47.4.
of the complainant and erred by requiring him to attend counseling as part of
his sentence. We will affirm.
Jolly, his daughter Mindy, and Mindy’s infant child attended a birthday
party at a relative’s residence on December 15, 2005. Mindy had given Jolly
a ride to the party, but she left without him to return to Jolly’s house sometime
around 10:00 p.m. Jolly returned to his house about an hour later, angry that
Mindy had left the party without him. Jolly confronted Mindy about leaving
him, and they became involved in a physical confrontation, falling to the floor
a number of times during the struggle. While on the floor, Jolly put his arms
around Mindy’s torso, and Mindy swung her arms and head back in an effort
to break free. Her head contacted Jolly’s lip, cutting it open. Jolly grabbed
Mindy’s arm, flipped her over, grabbed her hair, and hit her head on the floor.
At some point during the struggle, Jolly grabbed a zip tie and unsuccessfully
attempted to place it over her. Mindy was able to get away, retrieve her child,
and leave the house. Extremely upset, crying, and with a substantial amount
of blood on her shoulders, she flagged down a nearby police officer along the
road and informed him that she had been assaulted. Shortly thereafter, the
same police officer responded to a 911 call made by Jolly and arrested him.
Mindy suffered a dislocated shoulder, a sprained wrist, and contusions.
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Mindy, Jolly, and the responding police officers testified at trial about the
events that occurred on December 15, 2005. Two defense witnesses testified
about Mindy’s character for violence and for truthfulness, opining that she was
a violent and untruthful person. During the trial, the trial court sustained a
number of objections lodged by the State, which Jolly now complains of in part
on appeal. In addition to 120 days in jail, the trial court ordered Jolly to attend
“in-custody BIP” as part of his sentence. The written judgment does not
contain the “in-custody BIP” portion of Jolly’s sentence.
Jolly argues in his first five issues that the trial court abused its discretion
by sustaining the State’s objections to multiple questions posed by Jolly’s
attorney. He contends that the trial court’s limitation of his cross-examination
had the effect of denying him his right of confrontation as guaranteed by the
Sixth Amendment to the United States Constitution. See U.S. C ONST amend.
VI. Jolly argues that his “first five issues demonstrate unconstitutional
limitations placed by the trial court on [his] right to confront and cross-examine
the only material witness in this case. These five related issues had the
cumulative effect of restricting the information [that he] was able to show the
jury about the complaining witness’[s] credibility and her bias and motive to
testify against [him].”
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An appellate court reviews a trial court’s exclusion of evidence for an
abuse of discretion. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App.
1996). A trial court abuses its discretion when it acts without reference to any
guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v.
State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
The Sixth Amendment right to confrontation necessarily includes the right
to cross-examine. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App.
1996). This constitutional right is violated when appropriate cross-examination
is limited. Id. However, constitutional error may be forfeited by failure to raise
the issue at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.
1990); see also Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App.
1991) (reasoning that a defendant forfeits his constitutional right to confront
witnesses if he does not object to the denial of that right at trial).
An appellate issue involving a proffer of evidence rather than an objection
must still satisfy the preservation of error requirements. Reyna v. State, 168
S.W.3d 173, 179 (Tex. Crim. App. 2005) (stating that the purpose of requiring
an objection is to give to the trial court or the opposing party the opportunity
to correct the error or remove the basis for the objection and reasoning that
“[a]though this case involves a proffer of evidence rather than an objection, the
same rationale applies.”). To preserve a complaint for our review, a party must
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have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling if they are not apparent from
the context of the request, objection, or motion. T EX. R. A PP. P. 33.1(a)(1);
Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g),
cert. denied, 526 U.S. 1070 (1999). If the proponent of the evidence does not
clearly articulate to the trial court that the Confrontation Clause requires the
admission of the challenged evidence, he fails to do everything necessary to
bring to the trial court’s attention the evidentiary rule or statute in question and
its precise and proper application to the evidence in question, and error is not
preserved in such a case. Reyna 168 S.W.3d at 179. Thus, it is not enough
to merely attempt to introduce evidence or to tell the judge that the evidence
is admissible. Id. Rather, the proponent, if he is the losing party on appeal,
must have told the trial court why the evidence was admissible. Id.; Nelson v.
State, No. 14-06-00684-CR, 2007 WL 2790367, at *3 (Tex. App.—Houston
[14th Dist.] Sept. 27, 2007, pet ref’d) (mem op.) (not designated for
publication). The complaint on appeal must comport with the complaint raised
at trial. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).
In his first issue, Jolly argues that the trial court abused its discretion and
denied him his right of confrontation under the Sixth Amendment when it
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prohibited him from cross-examining Mindy regarding the effects of a criminal
conviction on her living situation. The following exchange occurred:
[Defense counsel]: Mindy, would you be able to continue to stay
in that program if you picked up a criminal conviction?
[Prosecutor]: Objection, relevance. She’s not on trial for - -
The Court: I’m going to sustain that objection.
[Defense counsel]: Mindy, going back to the first physical contact
of that night at the house, who was the first person to touch who?
And I don’t mean push, shove, but who made the first physical
contact?
In his second issue, Jolly argues that the trial court abused its discretion
and denied him his right of confrontation under the Sixth Amendment when it
prohibited him from cross-examining Mindy regarding her testimony on direct
examination about his culpable mental state. The following exchange occurred:
[Defense counsel]: When you say that your dad put this zip tie
over you, you can’t say - - is it true that you said you don’t know
what his intentions were?
[Mindy]: I can’t state his intentions.
[Defense counsel]: So you don’t feel that he was doing it to choke
you?
[Prosecutor]: Objection. She stated she doesn’t know what his
intentions were.
The Court: I’ll sustain. I think she’s answered that question.
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Now, if you’re at a point where you can’t go any further, tell me,
and we’ll take a break.
[Defense counsel]: I’m not - - just a moment, Judge.
Oh, Mindy, when you commented that your dad made a statement
last time you were at court, - -
In his third issue, Jolly argues that the trial court abused its discretion and
denied him his right of confrontation under the Sixth Amendment when it
denied him the opportunity to impeach Mindy with an admission against
interest. Jolly sought to impeach Mindy by questioning a third party about the
circumstances surrounding her assault of a roommate because the State had
elicited testimony about Mindy’s conviction for the assault, including the
justifications for Mindy’s conduct in that case. The following exchange
occurred outside the presence of the jury:
[Defense counsel]: But as far as that goes, but what about the
occasion where she came and she - - Mindy’s testified that the
reason she assaulted Brittany was because she grabbed her by the
arms. She admitted - -
The Court: No. We’re not getting into any specifics of any other
incidences.
[Defense counsel]: But in this case, Judge, it’s specifically
impeachment. She said one thing. There’s a witness that tells you
there’s an admission against interest, the opposite.
The Court: No. I’m not going to get into that. She pled no
contest to it in a criminal court. So that should matter more than
anything else at this point in time.
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[Defense Counsel]: But she testified.
The Court: No, I’ve ruled.
[Defense Counsel]: Okay.
In his fourth issue, Jolly argues that the trial court abused its discretion
and denied him his right of confrontation under the Sixth Amendment when it
prohibited him from questioning Mindy about her propensity for violence or past
violent behavior. The following exchange occurred:
[Defense counsel]: Ever behave like that before, Mindy?
[Prosecutor]: Objection, relevance.
The Court: Sustained.
In his fifth issue, Jolly argues that the trial court abused its discretion and
denied him his right of confrontation under the Sixth Amendment when it
prohibited him from questioning Mindy about prior assault allegations against
her. The following exchange occurred:
[Defense counsel]: Mindy, have you ever assaulted anyone before?
[Prosecutor]: Objection, relevance.
The Court: Sustained.
[Defense counsel]: Judge, it goes to character. It goes to pattern.
In each instance above, Jolly never argued that the Confrontation Clause
demanded admission of the evidence that he sought to introduce.
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Consequently, the trial court never had the opportunity to rule upon this
rationale. Because Jolly failed to raise at trial the Confrontation Clause
argument that he now asserts on appeal, he did not preserve this issue for
appellate review. See Reyna, 168 S.W.3d at 179. We overrule Jolly’s first,
second, fourth, and fifth issues. As to Jolly’s third issue, to the extent Jolly
argues that he was denied his right of confrontation, we overrule his third issue.
In his third issue, Jolly argues that the trial court abused its discretion
when it prohibited Jolly from asking a defense witness if Mindy told her that
she had assaulted the complainant in Mindy’s assault case because the
complainant had told Mindy that she was an unfit parent and not because the
complainant had grabbed Mindy’s daughter by the arm. The general rule is that
a party is not entitled to impeach a witness on a collateral matter. Ramirez v.
State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990). However, when a
witness leaves a false impression concerning a matter relating to his or her
credibility, the opposing party may attempt to correct that false impression on
cross-examination. Id. at 676. “[T]he opponent must correct the ‘false
impression’ through cross-examination of the witness who left the false
impression, not by calling other witnesses to correct that false impression.”
Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002). To the extent
that Jolly does not raise a right of confrontation argument in this issue, the trial
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court did not abuse its discretion by prohibiting Jolly from attempting to correct
the alleged false impression that Mindy left about the circumstances
surrounding her assault case by questioning a third party about the false
impression in an attempt to correct it. Accordingly, we overrule the remainder
of Jolly’s third issue.
In his sixth issue, Jolly argues that the trial court erred when it made an
oral pronouncement of sentence requiring him to attend “in-custody BIP” (a
batterers’ intervention program) while he served his sentence because attending
counseling is not a form of punishment included for the offense of assault
bodily injury. He asks us to strike the counseling requirement, but he also prays
that we reverse his conviction and sentence.
Section 12.01 of the penal code provides that “[a] person adjudged guilty
of an offense under this code shall be punished in accordance with this chapter
and the Code of Criminal Procedure.” T EX. P ENAL C ODE A NN. § 12.01 (Vernon
2003). With certain exceptions inapplicable here, the offense of assault bodily
injury is a class A misdemeanor. See id. § 22.01(a)(1), (b). A class A
misdemeanor carries with it a fine not to exceed $4,000, confinement in jail for
a term not to exceed one year, or both a fine and confinement. Id. § 12.21.
The requirement that Jolly attend “in-custody BIP” during his 120-day
sentence is thus not authorized by law, which the State has essentially
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conceded. See id. A sentence not authorized by law is unenforceable. See
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
Although the trial court made an oral pronouncement requiring Jolly to
attend “in-custody BIP,” the written judgment does not contain this portion of
the sentence. Generally, an oral pronouncement of a sentence will control over
the written judgment, and the solution when there is a conflict is to modify the
written judgment to conform to the sentence that was orally pronounced.
Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Coffey v.
State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). But nothing in Coffey
suggests that if the oral pronouncement of a sentence is legally unenforceable,
as in the present case, the unenforceable oral pronouncement nonetheless
prevails over an enforceable written sentence as set forth in the judgment.
Ribelin v. State, 1 S.W.3d 882, 885 n.2 (Tex. App.—Fort Worth 1999, pet.
ref’d). The sentence that a defendant serves is based on information contained
in the written judgment. T EX. C ODE C RIM. P ROC. A NN. art. 42.01, § 1 (Vernon
2006).
Here, the written judgment is enforceable because it falls within the
statutory range of punishment for a class A misdemeanor. There is nothing to
suggest that the legally unenforceable oral pronouncement of sentence controls
over Jolly’s written sentence. The State has not argued as much, and we have
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found no authority supporting that conclusion after conducting our own
research. Consequently, because (1) the oral pronouncement requiring Jolly to
attend “in-custody BIP” is unenforceable, (2) the written judgment is
enforceable, and (3) we have found no authority showing that the legally
unenforceable oral pronouncement of sentence controls over the written
judgment, to the extent Jolly argues that his sentence is void, we can only hold
that the trial court’s error in orally pronouncing sentence did not affect Jolly’s
substantial rights. See T EX. R. A PP. P. 44.2(b); T EX. C ODE C RIM. P ROC. A NN. art.
42.01, § 1; Tucker v. State, No. 05-02-00616-CR, 05-02-00617-CR, 2003 WL
42438, at *3 (Tex. App.—Dallas Jan. 7, 2003, pet ref’d) (not designated for
publication) (holding that trial court’s error in orally pronouncing sentence
outside of punishment range did not affect appellant’s substantial rights
because sentence imposed by written judgment was within statutory range of
punishment). 2 We overrule Jolly’s sixth issue.
2
… Like the appellant in Tufele v. State, Jolly requests that we strike the
oral pronouncement of sentence requiring him to attend counseling. 130
S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In that case,
during its oral pronouncement of sentence, the trial court ordered Tufele to
display two photographs of the “victim” in his cell for at least the first two
years of incarceration. Id. at 272. The trial court’s written judgment did not
contain this portion of the sentence. Id. at 274. The court of appeals struck
that portion of his sentence because they had no way of knowing whether
appellant, who was serving his sentence, had been required to display the two
photographs. Id. Here, Jolly is free on bond pending appeal. Because the
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Having overruled all of Jolly’s issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL F: HOLMAN, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 19, 2008
sentence that Jolly will serve is based on information in the written judgment,
see article 42.01, § 1, code of criminal procedure, and the written judgment
does not mention in-custody BIP, we decline to “strike” the offending language,
“You also will do in-custody BIP while you’re in jail,” from the reporter’s record.
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