Charles Edward Tindol v. State ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00178-CR
______________________________
CHARLES EDWARD TINDOL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 37278-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Charles Edward Tindol stabbed Kenneth Gray several times in a bar restroom. Tindol
appeals his conviction of aggravated assault and sentence of four years’ imprisonment.1 On the
stand, Gray testified he had been slashed on his back from his “shoulder blade down around my
armpit.” The medical records show that the stab wounds were on the front of the body, not the
back; the scar on Gray’s back was the result of the surgery, not the stab wound itself. The State
sought to reopen the evidence to call Dr. John Mack, Gray’s treating surgeon, for the purpose of
clarifying Gray’s mistake. Tindol’s sole argument is that the trial court erred in allowing the State
to reopen the evidence. He complains that Mack’s testimony “bolster[ed] the contradictory
testimony of Kenny Gray and . . . reemphasize[d] the severe nature of his wounds.” Because
Tindol failed to preserve this issue for appeal, we affirm the trial court’s judgment.
Points of error on appeal must correspond or comport with objections and arguments made
at trial. Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d) (citing
Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)). “Where a trial objection does not
comport with the issue raised on appeal, the appellant has preserved nothing for review.” Id.; see
TEX. R. APP. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). As the State
sought to reopen the evidence, the following transpired:
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
MR. HAASE [For the State]: . . . . This morning I brought the victim back
down and then brought Dr. Mack down here. I didn’t know what the outcome was
going to be until just a minute ago when Dr. Mack actually looked at the scar that
we’re talking about and said whether or not that’s a surgical scar or a knife wound.
Just a minute ago he looked at the scar and said that, in fact, that is a thoracotomy
scar, and he was present when the thoracotomy surgery was performed and can say
not only that he operated on this patient but that, in fact, he recognizes that scar as a
thoracotomy scar . . . .
MR. MOORE [For Tindol]: Judge, we’re going to object, one, because
even with the testimony it doesn’t clear it up. There’s no matter -- even with
Dr. Mack’s testimony, the victim lied. He did not get cut on the back. The
medical records show he didn’t get cut on the back. The shirt shows he didn’t get
cut on the back.
I didn’t want to bring this up, but this is the closest to suborning perjury I’ve
ever had in a trial. When the victim tells them the day that he was going to testify
that, “I got sliced on the back,” and stands before the jury when all the evidence
shows that it clearly didn’t happen, and now they even have further proof from the
doctor that it clearly didn’t happen. How is that going to clear anything up for the
jury? It can’t clear anything up.
....
THE COURT: Wouldn’t that further support your position that he lied on
the stand?
MR. MOORE: Sure. That -- go ahead, you can put him up. Judge, I
mean, that’s just -- that fact alone, it’s just amazing to me that it’s actually coming
in. That’s all I’ve been thinking about that he would get up there and lie on there.
THE COURT: Well, what I want to hear from you is your reason why the
doctor shouldn’t be allowed to testify.
MR. MOORE: Because it doesn’t -- it helps -- it does not help the jury at
all. It clears nothing up, Judge.
THE COURT: All right. I disagree. I think it would clear a lot up. So
I’m going to allow the State to reopen on that issue.
3
At trial, Tindol argued that Mack’s testimony would not be helpful to the jury, but on appeal,
Tindol argues that Mack’s testimony allowed the State to bolster Gray’s testimony. Tindol did
not suggest his argument of bolstering to the trial court, perhaps because the assertion is contrary
to the record. In fact, Mack’s testimony contradicted Gray’s assertion that he was stabbed in the
back by Tindol. Although Tindol also argues that Mack’s testimony should have been excluded
because it re-emphasized the nature of Gray’s injuries, such objection or argument was not made
to the trial court.2 Thus, it was not preserved.
Even if the objection had been properly preserved on the issue, we would find the trial
court acted within its discretion. “The court shall allow testimony to be introduced at any time
before the argument of a cause is concluded, if it appears that it is necessary to a due administration
of justice.” TEX. CODE CRIM. PROC. ANN. art. 36.02 (Vernon 2007). This statute has been
construed in favor of allowing the State or the defendant to reopen the evidence. Fuller v. State,
737 S.W.2d 113, 114 (Tex. App.—Tyler 1987, no pet.). The trial court’s discretion to allow
reopening of the evidence is as broad as the phrase “necessary to a due administration of justice.”
Id. Here, a witness had either mistakenly or deliberately testified that his back was cut in this
assault, causing a large scar across his back. The evidence admitted by the physician established
that the back incision was due to the surgery and was not directly caused by the wound Gray
received. This evidence was not necessarily helpful to the State, as it showed a State’s witness’
2
Tindol did not object during Mack’s testimony, which was focused only on the surgery scar on Gray’s back.
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testimony was incorrect. Regardless of whether the evidence weighed for or against the State, the
trial court had the discretion to allow the introduction of this evidence as “necessary to a due
administration of justice.”
Because we find that Tindol’s objection below does not comport with the argument on
appeal, we find that Tindol has failed to preserve his sole complaint for our review. It is
overruled.
We affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: April 19, 2011
Date Decided: April 20, 2011
Do Not Publish
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