Floyd Anthony Blount v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00198-CR
FLOYD ANTHONY BLOUNT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2009-1640-C2
MEMORANDUM OPINION
In two issues, Appellant Floyd Anthony Blount appeals his conviction for
aggravated assault. We will affirm.
BACKGROUND
Tony Montoya testified that he dropped his truck off at the local high school so
that his son could drive it home from baseball practice. Montoya, a plumber, left his
work tools in the truck. About thirty minutes after his son had arrived home from
baseball practice, Montoya noticed that his tools were missing. Shortly thereafter,
Montoya’s younger son came running home from a nearby friend’s house. Montoya’s
younger son testified that a man had come by his friend’s house wanting to buy drugs
and that the man had tools that looked just like his dad’s tools. He told his dad this,
and they got in the truck and left to see if they could find the man.
Montoya testified that they found Blount walking down the street and that
Blount had Montoya’s tools. Montoya confronted Blount. Blount said that he had
found the tools and that they were now his. Montoya continued to insist that the tools
were his, and Blount then pulled a machete out of his backpack. Blount took several
steps toward Montoya and threatened to “cut [him] up.” Montoya stated that Blount
seemed to be intoxicated. Montoya then told Blount that if he would leave the tools,
Montoya would not call the police. Blount put the machete up, left the tools, and
walked away.
Montoya and his son went back to their home and called the police. The police
responded and found Blount with the machete. One of the officers testified that Blount
appeared to be intoxicated or high. Blount told the officers that he pulled the machete
on Montoya because Montoya had a gun. Montoya testified that he did not have a gun
with him when he confronted Blount.
Blount testified that he did steal Montoya’s tools. His car had run out of gas, and
he was walking to the store so that he could sell Montoya’s tools and some tools that he
had had in his own car for gas money. As he was walking, Montoya confronted him
with a gun and demanded his tools back. Blount gave Montoya the tools. Montoya
then told Blount, “Okay, I’m going to let you make it this time.” Blount denied being
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under the influence of anything that day and denied that he pulled the machete out and
threatened Montoya with it.
A jury found Blount guilty of aggravated assault with a deadly weapon finding
and assessed his punishment, enhanced by two prior felony convictions, at thirty years’
imprisonment.
JUROR MISCONDUCT
In his first issue, Blount contends that the trial court erred in not granting a
mistrial after a juror revealed during the trial that she had previously seen Blount so
drunk that he was refused service at a convenience store.
During voir dire, the trial court asked if any of the venire-members knew Blount.
No one in the venire said that they knew Blount. Thereafter, on the morning of the
second day of the guilt/innocence phase of the trial, the bailiff reported to the court,
and the court in turn informed the State and Blount, that one of the jurors had
approached the bailiff and told him that she had previously encountered both Blount
and the victim at a convenience store and exchanged casual greetings. The bailiff also
confirmed that the juror told him that she had seen Blount inebriated or intoxicated on
more than one occasion but that she could still be fair.
Blount’s counsel objected, arguing that he would have exercised a peremptory
strike on the juror had he known of her previous contact with Blount. Blount’s counsel
also suggested that he have the opportunity to examine the juror “so we can hear
exactly what she has to say to see . . . whether or not she’d be fair in going forward and
Blount v. State Page 3
whether or not we need to move for a mistrial.” The court eventually decided to
proceed with the trial without permitting the examination of the juror:
Well, she has informed the court bailiff, each time she’s disclosed
some of this information, that she could be fair. I’m not going to permit
the examination of the member of the jury.
And is there anything, then, from the State or the defense before I
bring the jury in the courtroom?
Blount’s counsel replied, “Just procedurally, in order to preserve error, I’d like to move
for a mistrial at this time.” The trial court denied the motion.
Subsequently, after the court read the punishment verdict in open court, the trial
court then decided that the juror should be questioned. The juror testified that she had
seen Blount and the victim on multiple occasions at a convenience store. On one
occasion, she had seen Blount very intoxicated, and the convenience store employees
refused to sell him beer. When asked if Blount then “cause[d] a scene,” she replied,
“Not really.” She said that Blount told them that they were lying and then went out to
the parking lot. The juror stated that she then laughed and said, “Well, he’s having a
good time.”
The juror agreed that having seen something already, it would be easier to
believe it when someone said it happened again. Defense counsel asked, “[S]o when
the officers testified about him getting mouthy during the arrest, that was pretty easy
for you to believe since you had seen him get mouthy?” At first, the juror replied “yes,”
but then changed her answer and said, “Not because of that. Because that’s what
people do when they’re full like that.” The juror ultimately stated that despite having
Blount v. State Page 4
some knowledge of Blount, she “definitely” based her decision and her verdict solely
and only on the evidence that she heard in the courtroom.
As soon as the juror exited the courtroom, the trial court asked, “Is there
anything from the State or the defense at this point in time?” The State replied,
“Nothing from the State, Your Honor.” Blount’s counsel replied, “Nothing from the
defense, Your Honor.”
The State initially argues that Blount forfeited his complaint about the juror
when, after the juror was questioned, Blount failed to re-urge his objection, renew his
request for a mistrial, or ask that a new trial be granted. Blount responds that the post-
verdict questioning of the juror functioned essentially as an offer of proof by way of
question and answer and did not require that he re-urge his objection. We agree with
the State.
To have preserved a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion “with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent from
the context.” TEX. R. APP. P. 33.1(a)(A). Furthermore, the trial court must have ruled on
the request, objection, or motion, either expressly or implicitly, or refused to rule on the
request, objection, or motion, and the complaining party objected to the refusal. Id.
“The requirement that complaints be raised in the trial court (1) ensures that the trial
court will have an opportunity to prevent or correct errors, thereby eliminating the need
for a costly and time-consuming appeal and retrial; (2) guarantees that opposing
counsel will have a fair opportunity to respond to complaints; and (3) promotes the
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orderly and effective presentation of the case to the trier of fact.” Gillenwaters v. State,
205 S.W.3d 534, 537 (Tex. Crim. App. 2006).
Here, as soon as he discovered that the juror had previous contact with him,
Blount objected and requested the opportunity to examine the juror “so we can hear
exactly what she has to say to see . . . whether or not she’d be fair in going forward and
whether or not we need to move for a mistrial.” When the trial court denied this
request, Blount then moved for a mistrial, which the trial court also denied. Thereafter,
the trial court revisited its decision and essentially granted Blount part of the relief that
he had requested. The trial court allowed Blount the opportunity to examine the juror.
The juror then answered the questions of the trial court, the State, and Blount, and, at
that time, Blount did not re-urge his objection, renew his request for a mistrial, or ask
that a new trial be granted. Thus, Blount did not preserve his complaint for review. See
Nevarez v. State, 503 S.W.2d 767, 769-70 (Tex. Crim. App. 1974) (complaint about failing
to grant motion for mistrial unpreserved when defense attorney objected and moved for
mistrial, trial court just sustained objection, and defense attorney did not request that
jury be instructed not to consider matter complained of and did not renew his motion
for mistrial); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (“[T]he
point of error on appeal must comport with the objection made at trial.”). Instead,
Blount left the impression that he was satisfied with the juror’s answers and felt that she
had been fair. We overrule Blount’s first issue.
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IMPEACHMENT WITH PRIOR CONVICTIONS
In his second issue, Blount contends that the trial court abused its discretion in
allowing the State to impeach him with five of his prior convictions that were outside
the Rule 609 ten-year window.1
On direct examination, the following exchange took place between Blount and
his trial counsel:
Q All right. Mr. Blount, I’m going to ask you a few questions.
And the first thing I’m going to ask you about is similar to when the State
was asking Mr. Montoya about some prior problems with the law. I’m
going to talk to you about some prior problems you’ve had as well, okay?
A Yes, sir.
Q Okay. Let’s see, in -- in 2005, were you convicted for
Possession of Firearm By a Felon?
A Yes, sir.
Q Okay. In -- I’m sorry, give me one second here.
In November of 2000, in Harris County, were you
convicted of Unauthorized Use of a Motor Vehicle?
A Yes, sir.
1 Rule of Evidence 609 provides in pertinent part:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence
that the witness has been convicted of a crime shall be admitted if elicited from the
witness or established by public record but only if the crime was a felony or involved
moral turpitude, regardless of punishment, and the court determines that the probative
value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period
of more than ten years has elapsed since the date of the conviction or of the release of the
witness from the confinement imposed for that conviction, whichever is the later date,
unless the court determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially outweighs its
prejudicial effect.
TEX. R. EVID. 609(a), (b).
Blount v. State Page 7
Q In 2002, were you convicted of Burglary of a Motor Vehicle?
A Yes, sir.
Q And then 2004, were you convicted of Theft in Harris
County? May of ’04?
A Yeah.
The following exchange then took place on cross-examination:
Q [Prosecutor] … Now, Mr. Blount, you didn’t really go over
all your criminal history, did you?
A Me?
Q Uh-huh.
A No.
Q Okay. In fact, you went to the penitentiary on November
3rd, 1981?
[Defense Counsel]: Objection, Your Honor. May we
approach?
THE COURT: State your objection on the record.
[Defense Counsel]: I’m sorry?
THE COURT: What’s your objection?
[Defense Counsel]: Um -- um, she’s going outside the scope
of what’s admissible here as a witness, any felony or any crime of moral
turpitude within the last 10 years is admissible, but not a conviction in
1981.
[Prosecutor]: Your Honor, there’s a steady chain of
convictions that I’ll attach.
THE COURT: I’ll overrule the State’s -- I mean, overrule the
defense’s objection.
Blount v. State Page 8
Q [Prosecutor] Mr. Blount, isn’t it true that you went to the
penitentiary on November 3rd, 1981, out of the 180th District Court in
Harris County for the felony offense of Burglary?
A Yes, ma’am.
Q All right. And isn’t it true that on that same date, November
3rd, 1981, you also went to the penitentiary out of the 180th District Court
of Harris County for the felony offense of Escape?
A Yes.
Q All right. And then you went back to the penitentiary on
October 28th of 2005, out of the 230th District Court of Harris County for
Unlawful Possession of a Firearm By a Felon?
A What year?
Q 2005.
A Yes, ma’am.
Q All right. Isn’t it also true that you were convicted on March
4th, 1981, in Harris County, Texas, for the offense of Resisting Arrest?
A I don’t remember that.
Q Okay. That’s going to be Cause Number 604238.
THE COURT: Let me see counsel up here for just one
second.
(Off-the-record bench conference with Court and counsel.)
Q [Prosecutor] Now, Mr. Blount, isn’t it true that you went to
the penitentiary again on July 8th of 1999, out of the 176th District Court
of Harris County for Possession of Cocaine?
A Yes, ma’am.
Blount v. State Page 9
Q And isn’t it true that you went to the penitentiary on that
same date, July 8th, 1999, for another felony offense of Theft From a
Person?
A Yes, ma’am.
Q And November 8th, 2000, out of the 203rd District Court of
Harris County for Unauthorized Use of a Motor Vehicle?
A Yes, ma’am.
Q And February 4th 2002, for Burglary of a Motor Vehicle?
A I don’t remember that.
Q How about May 13th, 2004, in Harris County for Theft?
Don’t remember those?
A No.
Blount complains that the 1981 conviction for resisting arrest, the 1981 conviction
for burglary of a building, the 1981 conviction for escape, the 1999 conviction for
possession of a controlled substance, and the 1999 conviction for theft from a person
were remote for purposes of Rule 609(b) and therefore should not have been admitted
into evidence during the guilt/innocence phase of the trial. The State responds that
Blount preserved only his complaint to the 1981 conviction for burglary of a building.
As stated above, to have preserved a complaint for our review, a party must
have presented to the trial court a timely request, objection, or motion “with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds
were apparent from the context.” TEX. R. APP. P. 33.1(a)(A). The objecting party must
continue to object each time the objectionable question or evidence is offered, obtain a
running objection, or request a hearing outside the jury’s presence to preserve a
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complaint for appellate review. Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco
2011, pet. ref’d).
Here, the only objection Blount made to the admission of the prior convictions
was, “[S]he’s going outside the scope of what’s admissible here as a witness, any felony
or any crime of moral turpitude within the last 10 years is admissible, but not a
conviction in 1981.” Blount argues that the context of this objection shows that he was
objecting to “admission of any and all of Blount’s prior convictions that were outside
the ten-year window, not merely the 1981 conviction.” However, Blount specifically
objected only to a 1981 conviction, he did not obtain a running objection, and he did not
request a hearing outside the jury’s presence. Thus, we conclude that Blount’s
complaints on appeal about the admission of the 1999 convictions were not preserved.
We will assume without deciding that his complaints about the admission of all three
1981 convictions were preserved and that the trial court erred in admitting the
evidence.
Error under the Rules of Evidence in admitting evidence is nonconstitutional
error governed by Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b);
TEX. R. EVID. 103(a); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Rule
44.2(b) provides that a nonconstitutional error “that does not affect substantial rights
must be disregarded.” Substantial rights are not affected by the erroneous admission of
evidence if, after examining the record as a whole, we have fair assurance that the error
did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 356
(Tex. Crim. App. 2002). In conducting a harm analysis under Rule 44.2(b), we decide
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“whether the error had a substantial or injurious effect on the jury verdict.” Morales v.
State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We “consider everything in the record,
including any testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, the character of the error and how it
might be considered in connection with other evidence in the case[,] . . . the jury
instruction given by the trial judge, the State’s theory and any defensive theories,
closing arguments, and voir dire if material to appellant’s claim.” Id. We also consider
overwhelming evidence of guilt, but that is only one factor in our harm analysis.
Motilla, 78 S.W.3d at 356-58.
Here, despite the admission of the 1981 convictions, the State offered evidence of
Blount’s lengthy and varied criminal history by questioning him about a 1999
conviction for possession of cocaine, a 1999 conviction for theft from a person, a 2000
conviction for unauthorized use of a motor vehicle, a 2002 conviction for burglary of a
motor vehicle, a 2004 conviction for theft, and a 2005 conviction for unlawful possession
of a firearm by a felon. Under these circumstances, we have a fair assurance that the
erroneous admission of the 1981 convictions did not influence the jury or had but a
slight effect. We overrule Blount’s second issue.
CONCLUSION
Having overruled both of Blount’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed June 6, 2012
Do not publish
[CRPM]
* (Chief Justice Gray concurs with the Court’s judgment to the extent it affirms the
trial court’s judgment. A separate opinion will not issue. Chief Justice Gray notes,
however, that he is of the opinion that appellant adequately preserved appellant’s first
issue regarding the juror, would address the issue on its merits and overrule the issue;
thus holding the trial court did not err in its denial of appellant’s motion for mistrial.)
Blount v. State Page 13