Arthur Alexander Office v. State ( 2015 )


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  • Opinion issued September 15, 2015
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00260-CR
    ———————————
    ARTHUR ALEXANDER OFFICE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 268th District Court
    Fort Bend County, Texas
    Trial Court Case No. 08-DCR-048561
    MEMORANDUM OPINION
    This is an appeal from an adjudication of guilt on a 2008 charge of
    aggravated assault causing bodily injury, a second degree felony. The trial court
    found true the State’s allegation in its motion to revoke that Appellant Arthur
    Office violated a condition of his probation—that he not commit any offense
    against the laws of Texas—when he assaulted his wife in February 2013. On that
    basis, the trial court granted the State’s motion to revoke and sentenced Office to
    seven years’ confinement. In his sole point of error, Office contends that the trial
    court abused its discretion by admitting irrelevant and unfairly prejudicial evidence
    of prior bad acts and extraneous offenses. We affirm.
    Background
    In 2008, Office pleaded guilty to the second-degree felony of aggravated
    assault causing serious bodily injury to his wife, Erika. The trial court placed
    Office on probation for four years. Between 2009 and 2013, the State filed five
    motions to adjudicate Office’s guilt, and the trial court extended his probation for
    two additional years. In August 2013, the State filed an amended motion for
    adjudication of guilt, alleging that Office assaulted Erika with a deadly weapon in
    February 2013 and committed the offense of retaliation in August 2013, by
    attempting to solicit Erika’s murder.
    The trial court conducted a hearing on the State’s motion, at which it heard
    testimony regarding the February 2013 assault from Erika, Office, and the
    responding officer. Though accounts of the alleged February 2013 assault offered
    by Erika and Office were inconsistent—Office claimed self-defense and that Erika
    was the aggressor—Office admits that there was a physical altercation.
    Photographs of Erika’s resulting injuries, including a bruised and swollen eye, and
    2
    other bruises and scratches, were admitted without objection. And the responding
    officer testified that, when he arrived, Erika was shaking, crying, and seemed to be
    in fear for her life.
    The trial court also heard evidence regarding another of the State’s grounds
    for revocation:     that Office attempted to hire Ronnie Washington, who was
    Office’s barber, to murder Erika.       During the hearing, Erika, the responding
    officer, Office’s probation officer, and Office himself testified about several bad
    acts or extraneous offenses by Office: the predicate 2008 assault of Erika for
    which Office was on probation, Office’s assault on their son, and Office’s adultery,
    bankruptcy filing, and DWI convictions.
    Although the trial court did not find true the State’s allegations regarding the
    alleged murder for hire, it did find true the allegation that Office assaulted Erika in
    February 2013, thereby violating the condition that he “[c]ommit no offense
    against the laws of [Texas].”       Accordingly, the trial court revoked Office’s
    probation and assessed punishment at seven years’ confinement. Office timely
    appealed.
    Discussion
    In his sole point of error, Office contends that the trial court abused its
    discretion by admitting evidence of irrelevant and unfairly prejudicial bad acts and
    extraneous offenses. Office contends that he would have received a more lenient
    3
    sentence had this evidence been excluded, and, accordingly, he argues that the trial
    court’s judgment should be reversed.
    A. Standard of Review and Applicable Law
    An appellant must preserve error in revocation hearings to challenge
    evidentiary rulings on appeal. See, e.g., Fuller v. State, 
    253 S.W.3d 220
    , 232–33
    (Tex. Crim. App. 2008) (holding that appellant waived appellate review of any
    associated error because he made no objections to testimony at trial). To preserve
    error, the complaining party must make a timely request, objection, or motion to
    the trial court that (1) is sufficiently specific to make the trial court aware of the
    complaint—unless it is apparent from the context—and (2) complies with the
    Rules of Evidence. TEX. R. APP. P. 33.1(a). Furthermore, a party must object
    every time allegedly inadmissible testimony is offered.        Johnson v. State, 
    84 S.W.3d 726
    , 729 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing
    Ethington v. State, 
    819 S.W.2d 854
    , 858 (Tex. Crim. App. 1991)).
    Assuming an error is properly preserved, even if a trial court errs by
    improperly admitting evidence, reversal is warranted only if the appellant
    demonstrates that the erroneous admission of this evidence affected his substantial
    rights. TEX. R. APP. P. 44.2(b). “It is well established that the improper admission
    of evidence does not constitute reversible error if the same facts are shown by
    other evidence which is not challenged.” Leday v. State, 
    983 S.W.2d 713
    , 717
    4
    (Tex. Crim. App. 1998) (internal quotations omitted) (quoting Crocker v. State,
    
    573 S.W.2d 190
    , 201 (Tex. Crim. App. [Panel Op.] 1978)). Thus, the improper
    admission of evidence is harmless if the same or similar evidence is admitted
    without objection at another point in the trial.
    B. Analysis
    On appeal, Office challenges the admission of several pieces of evidence he
    contends were irrelevant and unfairly prejudicial. The complained-of evidence
    relates generally to five subjects: (1) instances of Office’s abuse of Erika other
    than the 2013 assault that formed the basis of the motion to revoke and, in
    particular, the 2008 predicate assault, (2) Office’s adultery, (3) Office’s bankruptcy
    filing, (4) Office’s DWI conviction, and (5) Office’s assault on his son. The State
    responds that Office failed to preserve error or, alternatively, that the evidence was
    admissible or its admission was harmless.
    We conclude that Office failed to preserve error with respect to four of the
    categories of evidence about which he complains. Office made no objection to his
    probation officer’s testimony concerning his DWI conviction or his alleged assault
    on his son, nor did he object when Erika testified that they filed bankruptcy and
    that Office had committed adultery. And Office did not request or obtain a running
    objection to this evidence. In the absence of a running objection, the failure to
    object at trial waived any error in the admission of this evidence. See TEX. R. APP.
    
    5 P. 33
    .1(a); 
    Fuller, 253 S.W.3d at 232
    –33 (holding that appellant waived appellate
    review of any associated error because he made no objections to testimony at trial);
    
    Johnson, 84 S.W.3d at 729
    (party must object every time allegedly inadmissible
    testimony is offered).
    Even if Office arguably preserved error with respect to evidence related to
    instances of abuse or assaults on Erika other than the assault that formed the basis
    of the State’s motion to revoke, we nevertheless conclude that reversal is not
    warranted. We first note that the trial court had continuous jurisdiction over the
    original sentencing, and the revocation hearing is considered an extension of the
    original sentencing hearing. See Cobb v. State, 
    851 S.W.2d 871
    , 874 (Tex. Crim.
    App. 1993) (in sufficiency of evidence challenges in probation revocation cases,
    proof of judgment and order of probation is not required so long as they appear in
    the appellate record).   Because of this continuing jurisdictional nature of a
    probation revocation hearing, the fact of the 2008 assault was already before the
    trial court, and any admission of evidence related to the 2008 assault at the
    revocation hearing would have been harmless. In addition, though Office objected
    when Erika testified about the 2008 assault and other instances of abuse, Office
    admitted during his testimony that he struck Erika during the 2008 incident
    because she threw hot water on him. In sum, although Office objected to some
    evidence about which he complains on appeal, the same or similar evidence was
    6
    admitted without objection at other points in the trial. Accordingly, even assuming
    error were preserved, we conclude that any error in admitting the complained-of
    evidence was harmless. See Brooks v. State, 
    990 S.W.2d 278
    , 287 (Tex. Crim.
    App. 1999) (improper admission of evidence does not constitute reversible error
    and is properly deemed harmless if the same or similar facts are proved by other
    properly admitted evidence); Anderson v. State, 
    717 S.W.2d 622
    , 627 (Tex. Crim.
    App. 1986) (same). 1
    Conclusion
    We affirm the trial court’s judgment.
    Rebeca Huddle
    Justice
    Panel consists of Chief Justice Radack, Justice Bland, and Justice Huddle.
    Do not publish. Tex. R. App. P. 47.2(b).
    1
    We also note that the trial court commented generally that it would disregard
    evidence unrelated to the grounds for revocation alleged in the State’s motion. See
    Herford v. State, 
    139 S.W.3d 733
    , 735 (Tex. App.—Fort Worth 2004, no pet.)
    (assuming trial court disregarded inadmissible evidence when record reflected
    similar comment); Corley v. State, 
    987 S.W.2d 615
    , 621 (Tex. App.—Austin
    1999, no pet.) (likelihood that extraneous evidence will unfairly prejudice the
    defendant is diminished in bench trial).
    7