Hogan, Lonnie Wayne v. State ( 2013 )

Affirmed; Opinion Filed May 30, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00405-CR
LONNIE WAYNE HOGAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-34298-N
MEMORANDUM OPINION
Before Justices Francis, Lang, and Evans
Opinion by Justice Lang
Following a plea of not guilty, appellant Lonnie Wayne Hogan was convicted by a jury of
failure to comply with sex offender registration requirements. Additionally, appellant pleaded
true to one enhancement paragraph, and the jury found that enhancement paragraph true.
Punishment was assessed by the jury at twelve years’ imprisonment.
In two issues on appeal, appellant contends the trial court abused its discretion by
overruling his objections to (1) the admission of evidence of an “extraneous bad act” allegedly
committed by him and (2) improper jury argument. We decide against appellant on his two
issues. The trial court’s judgment is affirmed. Because all dispositive issues are settled in law,
we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
The indictment in this case alleged that because of a previous conviction for sexual
assault of a child, appellant is required to report any change of address or intended change of
address to local law enforcement authorities pursuant to the “Sex Offender Registration
Program” in chapter 62 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 62.001–62.408 (West 2006 & Supp. 2012). According to the indictment, on
approximately June 20, 2009, appellant “intentionally, knowingly, and recklessly” failed to
report such information within the required time periods.
At appellant’s request, the trial court held a pretrial hearing outside the presence of the
jury to determine the admissibility of “any extraneous offenses” committed by appellant. The
prosecution stated that it planned to introduce evidence of instances “not in the indictment” in
which appellant moved without notifying law enforcement authorities as required. According to
the prosecution, “all of these times that he moved go to his motive, opportunity, knowledge,
mistake of fact.” Defense counsel objected to the admissibility of such evidence on the grounds
that (1) “the prejudicial effect outweighs the probative value” and (2) appellant was not given
“reasonable” notice of the State’s intent to introduce such evidence as required by Texas Rule of
Evidence 404(b). See TEX. R. EVID. 404(b).
After hearing the evidence in question outside the jury’s presence, the trial court stated
The Court finds that the notice provided by the State to the defense was
reasonable and more than adequate. The Court further finds that the testimony
proffered is relevant. And lastly the Court rules that the evidence would not be
excluded because its probative value is substantially outweighed by the danger of
unfair practice. The Court therefore rules that the evidence is admissible.
Appellant requested and was granted a “continuing objection with regard to this during trial.”
During trial before the jury, Douglas Bailey testified he manages residential properties
that include “number 314” at 3022 Forest Lane in Dallas. Bailey testified he leased the
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condominium at that address to appellant for one year starting on April 1, 2008. Bailey stated
that at the end of the lease term, appellant gave “a 30-day notice.” The keys to the property were
returned to Bailey on April 1, 2009. According to Bailey, the forwarding address provided to
him was “3022 Forest Lane, number 402,” which is not a property managed by him.
Elizabeth Spooner testified that in 2008 and 2009, her family owned “condo number 402”
at 3022 Forest Lane in Dallas. During that time, they leased that condominium to Jennifer
Cantrell. Spooner testified she discovered in April 2009 that Cantrell had allowed appellant to
move into the condominium. According to Spooner, appellant lived at the condominium until
sometime before Cantrell was evicted in June 2009.
Cantrell’s daughter, Jessica Cantrell, testified that in 2008 and 2009, she lived in an
apartment on Forest Lane in Dallas with her mother and her mother’s boyfriend, Layne. Jessica
testified that in August 2008, she met appellant, who lived in the same apartment complex.
According to Jessica, in April 2009, appellant moved into the apartment where she, her mother,
and Layne were living. Jessica testified that on June 12, 2009, the four of them moved from that
apartment to Druid Lane in Irving, where they lived with her aunt and uncle. She stated that in
August 2009, she, her mother, and Layne moved to her grandmother’s home. Jessica testified
appellant continued living with her aunt and uncle at that time.
Julie Ann Reinhard testified that in June 2009, her sister, her sister’s daughter, her sister’s
boyfriend, and appellant moved into her home on Druid Lane in Irving. She testified appellant
“left for a short period and went to my parents’ house,” then came back to her home until
October.
Lori Jackson testified she is a detective with the Dallas Police Department and is assigned
to the Sex Offender Registration Unit. Jackson testified she first came in contact with appellant
on March 5, 2008, at the time of his “initial registration” in Dallas and has “registered him” on “a
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number of occasions” since that time. According to Jackson, each time appellant “came in” to
register his address, he initialed a document that stated he was aware that he was required to
notify authorities seven days prior to changing his address.
Jackson testified that on April 8, 2008, appellant came in and registered his address as
3022 Forest Lane in Dallas, “apartment number 314.” The next time she had contact with
appellant was on January 22, 2009. Jackson stated that on that date, appellant came in to register
and provided the same address he had provided previously, “3022 Forest, apartment 314.” She
testified the last contact she had with appellant was on January 28, 2010. She stated that on that
date appellant came in and she “processed him again” with the same address, 3022 Forest Lane,
“number 314.” According to Jackson, appellant did not tell her at any point that he was moving
to Irving. Police records pertaining to appellant’s registrations were offered and admitted into
evidence.
Scott Teien of the Irving Police Department’s Sex Offender Registration Unit testified
appellant did not at any time “register with the Irving Police Department.” Teien testified that on
May 10, 2010, he learned appellant was living at a “Motel 6 on Loop 12” in Irving. Teien stated
he checked the “secure website” to see where appellant was registered and discovered
appellant’s last registration was in Dallas on January 28, 2010.
Additionally, (1) Willie Washington of the Dallas County Sheriff’s Department testified
appellant’s fingerprints matched those on a certified copy of a prior conviction for aggravated
sexual assault and (2) Steven Buesing of the Irving Police Department testified as to the details
of appellant’s arrest in Irving on May 10, 2010, for failure to comply with sex offender
registration requirements. Appellant did not testify at trial.
In its closing argument, the State referred to the testimony of Jessica Cantrell and
Reinhard and stated, in part, as follows:
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And if you think about it, they have no reason to lie they have no motive to lie in
this case. [sic] And as we talked about in jury selection the other day, y’all are the
exclusive judges of witness credibility. You get to decide who you believe and
who you don’t believe. They have no reason to come up here and make up
anything on this defendant. If there was anybody in the world to say that they
were not truthful or honest people, the defense could have brought that to you,
and they didn’t.
At that point, defense counsel objected on the ground that the State was “shifting the burden of
proof.” The trial court overruled that objection. Then, the prosecutor stated, “Both sides have
equal subpoena power. So if the defense wanted a witness here, they could have gotten them
here.”
The charge of the court included, in part, the following instruction:
You are instructed if there is any testimony before you in this case regarding the
defendant’s having committed offenses other than the offense alleged against him
in the indictment in this case, you cannot consider said testimony for any purpose
unless you find and believe beyond a reasonable doubt that the defendant
committed such other offenses, if any were committed. And even then you may
only consider the same in determining the knowledge or intent of the defendant, if
any, in connection with the offense, if any, alleged against him in the indictment
in this case and for no other purpose.
After appellant’s conviction by the jury and the assessment of punishment described
above, appellant filed a timely motion for new trial. That motion was overruled by the trial
court. This appeal timely followed.
II. EVIDENCE OF “EXTRANEOUS BAD ACT”
A. Standard of Review and Applicable Law
“[A] trial court’s ruling on the admissibility of extraneous offenses is reviewed under an
abuse-of-discretion standard.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). As
long as the trial court’s ruling is within the “zone of reasonable disagreement,” there is no abuse
of discretion, and the trial court’s ruling will be upheld. Id.; Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007).
Texas Rule of Evidence 404(b) provides as follows:
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Evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon timely request by the accused in a criminal case, reasonable
notice is given in advance of trial of intent to introduce in the State’s case-in-chief
such evidence other than that arising in the same transaction.
TEX. R. EVID. 404(b).
Once a trial court rules that uncharged misconduct evidence is not barred under rule
404(b), the opponent of the evidence may further object under Texas Rule of Evidence 403.
Casey, 215 S.W.3d at 879; TEX. R. EVID. 403. Rule 403 states that evidence, although relevant,
may be excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.” TEX. R. EVID. 403. “Probative value” refers to
“the inherent probative force of an item of evidence—that is, how strongly it serves to make
more or less probable the existence of a fact of consequence to the litigation—coupled with the
proponent’s need for that item of evidence.” Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.
Crim. App. 2006). “Unfair prejudice” refers to “a tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.” Id. “[A] trial court, when
undertaking a Rule 403 analysis, must balance (1) the inherent probative force of the proffered
item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to
confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given
undue weight by a jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted.” Id. at 641–42. “[T]hese factors
may well blend together in practice.” Id. Under rule 403, it is presumed that the probative value
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of relevant evidence exceeds any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555,
568 (Tex. Crim. App. 2009). The rule envisions exclusion of evidence only when there is a
“clear disparity between the degree of prejudice of the offered evidence and its probative value.”
Id.; see also Casey, 215 S.W.3d at 879 (“In keeping with the presumption of admissibility of
relevant evidence, trial courts should favor admission in close cases.”).
To preserve error regarding the admission of evidence, a defendant must lodge a timely
and specific objection. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a); see also Clark v. State,
365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Ethington v. State, 819 S.W.2d 854, 858 (Tex.
Crim. App. 1991). The point of error on appeal must comport with the objection made at trial.
Clark, 365 S.W.3d at 339; Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998). An
objection stating one legal basis may not be used to support a different legal theory on appeal.
See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). If an objection at trial differs
from the complaint on appeal, no error is preserved for review. See Cantu v. State, 830 S.W.2d
166, 170 (Tex. App.—Dallas 1992, no pet.).
B. Analysis
In his first issue, appellant asserts “[t]he trial court abused its discretion when it overruled
the defense’s objection to the admission of evidence of [appellant’s] alleged extraneous bad act.”
Specifically, appellant asserts in his brief in this Court that the evidence complained of is
“pattern evidence” and, as such, is “explicitly prohibited under Rule 404(b).” Additionally,
appellant contends “the probative value of the evidence of the extraneous moves was outweighed
by the risk of unfair prejudice” and therefore such evidence should have been excluded pursuant
to rule 403.
The State responds, in part, that appellant “failed to preserve his Rule 404(b) claim for
appellate review” because appellant “never brought to the trial court’s attention in any fashion
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the specific argument he raises on appeal—that the moves were improper ‘pattern evidence.’”
Further, the State asserts the trial court did not abuse its discretion by overruling appellant’s rule
403 objection because the trial court “could have reasonably concluded that the probative value
of the extraneous moves was not substantially outweighed by the danger of unfair prejudice.”
The record shows appellant’s sole objection in the trial court respecting rule 404(b)
pertained to lack of adequate notice. Therefore, we conclude appellant’s complaint that the
evidence in question constituted improper “pattern evidence” was not preserved for this Court’s
review. See Cantu, 830 S.W.2d at 170; see also Chitwood v. State, 350 S.W.3d 746, 749 (Tex.
App.—Amarillo 2011, no pet.) (where appellant’s “invocation of rule 404” in trial court
pertained solely to alleged failure of State to provide him notice of its intent to proffer evidence
of particular extraneous offenses, appellant did not preserve for review his contention that such
evidence was not admissible because it was merely evidence tending to show character
conformance in violation of rule 404(a)).
As to appellant’s rule 403 complaint, we must balance the factors described above. See
Gigliobianco, 210 S.W.3d at 641–42. First, we consider the “inherent probative force” of the
proffered evidence and the proponent’s need for that evidence. Id. at 641. The evidence that
appellant moved several times between April 2009 and May 2010 while continuing to report his
previous address to local law enforcement authorities had substantial probative value as to
appellant’s knowledge of the reporting requirements and his intent respecting compliance. See
id. Further, the State needed the challenged evidence because the other evidence in the case did
not address such moves. See id. Next, we consider any tendency of the evidence to (1) suggest
decision on an improper basis, (2) confuse or distract the jury from the main issues, or (3) be
given undue weight by a jury that has not been equipped to evaluate the probative force of the
evidence. Id. The other evidence presented at trial distinguished the prior moves in question
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from the offense in May 2010 for which appellant was arrested, and thus it is unlikely the jury
was confused. Additionally, (1) the evidence in question was not of a type that would “carry
emotional weight” and thus was not likely to suggest decision on an improper basis, cf. Casey,
215 S.W.3d at 883; and (2) the jury was instructed that even if it found beyond a reasonable
doubt that the defendant committed offenses other than those charged in the indictment, such
offenses could be considered only “in determining the knowledge or intent of the defendant, if
any, in connection with the offense, if any, alleged against him in the indictment in this case and
for no other purpose.” See Biera v. State, 391 S.W.3d 204, 214 (Tex. App.—Amarillo 2012, pet.
ref’d) (considering limiting instruction in rule 403 analysis). Finally, appellant contends “the
presentation of the extraneous moves consumed roughly half of the presentation time.” The
record shows the evidence in question constituted at least one-third of the evidence presented
during the guilt-innocence phase of trial. However, the trial court could have concluded there
was no undue delay implicated by its presentation in light of the probative value of the evidence.
Cf. Airheart v. State, No. 08-11-00037-CR, 2012 WL 1431762, at *6 (Tex. App.—El Paso Apr.
25, 2012, pet. ref’d) (not designated for publication) (considering probative value of evidence
pertaining to extraneous offense in rule 403 analysis of whether such evidence, which was
presented through multiple witnesses, consumed inordinate amount of time). Further, the record
does not show the evidence in question “merely repeat[ed] evidence already admitted.” See
Gigliobianco, 210 S.W.3d at 642. On this record, we conclude the trial court could reasonably
have concluded that the probative value of the evidence in question was not substantially
outweighed by the danger of undue prejudice. See id.; TEX. R. EVID. 403.
We decide against appellant on his first issue.
III. IMPROPER JURY ARGUMENT
A. Standard of Review and Applicable Law
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We review a trial court’s ruling on an objection to improper jury argument for abuse of
discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Powell v. State,
63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Lemon v. State, 298 S.W.3d 705, 707 (Tex. App.—
San Antonio 2009, pet. ref’d). Proper jury argument generally falls within one of four areas: (1)
summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to opposing
counsel’s argument, and (4) plea for law enforcement. See Freeman v. State, 340 S.W.3d 717,
727 (Tex. Crim. App. 2011); Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). In
examining challenges to jury argument, we consider the remark in the context in which it
appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
B. Analysis
In his second issue, appellant contends the trial court erred when it overruled his
objection to improper argument by the prosecutor because the prosecutor’s argument “shifted the
burden of proof to the defense and was an improper comment of [sic] the presumption of
innocence.” The State responds that the complained of argument was “a proper summation of
the evidence and not an attempt to shift the burden of proof.”
As described above, during its closing argument, the State referred to the testimony of
Jessica Cantrell and Reinhard and stated, in part, “If there was anybody in the world to say that
they were not truthful or honest people, the defense could have brought that to you, and they
didn’t.” Following the trial court’s overruling of appellant’s objection to that argument, the
prosecutor stated, “Both sides have equal subpoena power. So if the defense wanted a witness
here, they could have gotten them here.”
“It is well-settled law that the State is entitled to comment on an accused’s failure to
produce testimony from sources other than himself when it is relevant to a disputed issue.”
Harris v. State, 122 S.W.3d 871, 884 (Tex. App.—Fort Worth 2003, pet. ref’d) (citing Patrick v.
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State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995)); see Bible v. State, 162 S.W.3d 234, 249
(Tex. Crim. App. 2005) (prosecutorial comment on absence of evidence is proper so long as
language used can reasonably be construed to refer to appellant’s failure to produce evidence
other than his own testimony); Johnson v. State, 651 S.W.2d 434, 438 (Tex. App.—Dallas 1983,
no pet.) (“The State may comment on the appellant’s failure to present evidence in his favor.”).
“Moreover, a prosecutor’s comment about the subpoena power of a defendant is proper if it
refers to the defendant’s failure to produce evidence from other sources.” Harris, 122 S.W.3d at
884.
The record shows the argument in question specifically pointed out the lack of testimony
from other witnesses that Jessica Cantrell and Reinhard were “not truthful or honest people.”
We cannot conclude such argument was “manifestly intended or of such a character that the jury
would naturally and necessarily interpret it as a comment on the defendant’s failure to testify.”
See Doty v. State, 820 S.W.2d 918, 924 (Tex. App.—Fort Worth 1991, pet. ref’d). Rather, the
argument in question was “merely a summation of the evidence presented at trial, coupled with
an argument that the jury should not be concerned with evidence not presented at trial,” i.e. any
evidence as to lack of truthfulness of Jessica Cantrell and Reinhard. See Harris, 122 S.W.3d at
884–85 (concluding State’s argument that defense has subpoena power to call witnesses to
testify as to any motive of State’s witnesses to lie was proper summation of evidence); see also
Doty, 820 S.W.2d at 924 (concluding State’s comment that if there was any evidence to support
the defense’s theory, “don’t you think that they might have brought it to you,” was permissible
summation of evidence). On this record, we conclude the argument complained of was not
improper. See Harris, 122 S.W.3d at 884–85; Doty, 820 S.W.2d at 924; see also Bible, 162
S.W.3d at 249 (concluding prosecutor’s reference to absence of documentary evidence did not
constitute shifting of burden of proof on special issues).
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We decide appellant’s second issue against him.
IV. CONCLUSION
We decide against appellant on his two issues. The trial court’s judgment is affirmed.
/Douglas L. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2
120405F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LONNIE WAYNE HOGAN, Appellant On Appeal from the 195th Judicial District
Court, Dallas County, Texas
No. 05-12-00405-CR V. Trial Court Cause No. F10-34298-N.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Francis and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of May, 2013.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
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