Austin Payne v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00268-CR
___________________________
AUSTIN PAYNE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court No. 1446222D
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Austin Payne appeals from his convictions for three counts of
aggravated sexual assault and for one count of aggravated assault with a deadly
weapon. In five points, Payne argues that the trial court abused its discretion by
admitting evidence that he had previously assaulted the complainant and used drugs
and by denying his request for a limiting instruction on the jury’s consideration of the
previous assaults. Because the trial court did not abuse its discretion by admitting
evidence of the prior relationship history between Payne and the complainant and
because Payne failed to preserve his past-drug-use and limiting-instruction arguments,
we affirm the trial court’s judgments.
I. PROCEDURAL BACKGROUND
Payne was indicted with six counts of aggravated sexual assault and one count
of aggravated assault with a deadly weapon against his girlfriend Amanda Brown.1
Each count was alleged to have occurred on February 20, 2016. The indictment
included a repeat-offender notice that Payne had been convicted of assault involving a
family member in 2014. Before trial, the State notified Payne that it intended to
introduce evidence at the guilt or innocence phase of trial that Payne previously
assaulted Brown multiple times in November 2015, in December 2015, in January
2016, and on February 19, 2016—the day before the indicted offense. See Tex. Code
1
We use an alias to refer to the complainant. See Tex. R. App. P. 9.8 cmt.; Tex.
App. (Fort Worth) Loc. R. 7.
2
Crim. Proc. Ann. art. 38.371(b); Tex. R. Evid. 404(b)(2). The evidence was admitted
during trial, and the jury found Payne guilty of three counts of aggravated sexual
assault and one count of aggravated assault with a deadly weapon.2 The same jury
then assessed Payne’s sentence at 53 years’ confinement for each count, which the
trial court ordered to run concurrently.
II. EVIDENCE OF PAST HISTORY WITH BROWN AND DRUG USE
A. PAST HISTORY WITH BROWN
In three of his points, which he jointly argues in his brief, Payne attacks the
admission of the evidence regarding his past relationship history with Brown.
Specifically, he asserts that the evidence was inadmissible character-conformity
evidence and that its probative value was substantially outweighed by the danger of
unfair prejudice. See Tex. R. Evid. 403, 404(a)(1), (b)(1). We review the trial court’s
admission of evidence for an abuse of discretion. See Beham v. State, 559 S.W.3d 474,
478 (Tex. Crim. App. 2018); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009).
The State notified Payne before trial that it intended to offer evidence of
Payne’s past violent relationship with Brown and past drug use. See Tex. Code Crim.
Proc. Ann. art. 38.371; Tex. R. Evid 404(b)(2). Before the beginning of testimony and
outside the jury’s presence, the State informed the trial court that Payne had an
objection to the admission of the relationship-history evidence. When asked for his
These were the only counts submitted to the jury.
2
3
objection, Payne stated that it was not relevant and that any ruling should be delayed
based on Payne’s motion in limine. The trial court overruled the relevance objection
and denied the motion in limine on the issue, ruling that “the State [could] develop
relevant issues, including the relationship of the parties.” Payne then lodged an
objection under rule 404(b) that the evidence was inadmissible character-conformity
evidence and was not admissible for another purpose. See Tex. R. Evid. 404(a)(1),
(b)(1)–(2). The trial court overruled this objection. Payne then urged the trial court
to make “at least a finding of fact or conclusion of law that . . . it’s not going into the
actual items listed in 404(b)(2).” The State argued that the past history with Brown
showed “the element of fear of physical force”3 and “certainly goes to motive,
opportunity, intent, preparation, plan, knowledge, and absence of mistake and lack of
accident.” See Tex. Penal Code Ann. § 22.021(c); Tex. R. Evid. 404(b)(2).
The trial court overruled the objection and allowed “the State to develop what’s
been outlined here for the purposes that’s been stated.” This evidence was admitted
many times during Payne’s trial, and Payne would consistently but fruitlessly reassert
his prior objections.4
An element of aggravated sexual assault is that the defendant acted without the
3
other person’s consent—the defendant compelled submission through threats of
violence that the other person believed the defendant had the present ability to
execute. See Tex. Penal Code Ann. §§ 22.011(b)(2), 22.021(c).
Although the exact language of his objections differed slightly each time,
4
Payne would refer to his “previous” objection. From the context of the record, it is
apparent that the trial court understood the grounds of Payne’s objections to the
admission of the prior-relationship evidence. See Tex. R. App. P. 33.1(a)(1)(A).
4
In prosecutions for aggravated assault involving family violence, the State may
offer evidence “of all relevant facts and circumstances that would assist the trier of
fact in determining whether the actor committed the offense . . ., including testimony
or evidence regarding the nature of the relationship between the actor and the alleged
victim.” Tex. Code Crim. Proc. Ann. art. 38.371(b). However, the admission of
evidence under this article does not allow admission of evidence that is proffered
solely to show character conformity or that otherwise violates the rules of evidence.
Id. art. 38.371(c).
1. Rule 404
Each prior incident involved Payne’s physical assaults of Brown while they
were in a dating relationship. Payne asserts that these extraneous acts were
inadmissible under article 38.371 because their admission violated rule 404(a)(1) and
(b)(1). But the past-relationship evidence was relevant for purposes other than
character conformity. At trial, Payne asserted that Brown consented to the sexual
assaults in an attempt to negate an element of the offense. See De La Paz, 279 S.W.3d
at 343 (“One well-established rationale for admitting evidence of uncharged
misconduct is to rebut a defensive issue that negates one of the elements of the
offense.”). Payne’s defensive theory made Brown’s consent a disputed issue; thus, the
State was entitled to offer evidence showing that Brown believed Payne had the ability
to make good on his threats based on her prior experiences with him, an element of
the offense. See Tex. Penal Code Ann. §§ 22.011(b)(2), 22.021(c); Casey v. State,
5
215 S.W.3d 870, 879–82 (Tex. Crim. App. 2007); Foster v. State, No. 01-17-00537-CR,
2018 WL 1914871, at *4 (Tex. App.—Houston [1st Dist.] Apr. 24, 2018, pet. ref’d)
(mem. op., not designated for publication); Brown v. State, 96 S.W.3d 508, 512 (Tex.
App.—Austin 2002, no pet.). The trial court did not abuse its discretion by overruling
Payne’s rule 404 objections. We overrule point one.
2. Rule 403
Similarly, the admission of this evidence under article 38.371 did not violate
rule 403, which allows the exclusion of relevant evidence if the danger of unfair
prejudice substantially outweighs its probative value. Tex. R. Evid. 403. Probative
value considers “the closeness in time between the extraneous offense and the
charged offense” and “the similarities between the extraneous offense and the
charged offense.” Kiser v. State, 893 S.W.2d 277, 281 (Tex. App.—Houston [1st Dist.]
1995, pets. ref’d). The evidence that Payne previously and similarly physically
assaulted Brown during the three months before the charged offense rebutted Payne’s
theory that Brown consented. Although the evidence was necessarily prejudicial, it
was not unfairly so compared to its probative value. We conclude that the trial court
did not abuse its discretion by admitting this evidence over Payne’s rule 403
objections. See Foster, 2018 WL 1914871, at *5. We overrule points two and four.
B. PAST DRUG USE
In his third point, Payne seems to assert on appeal that the responding police
officer’s testimony that Brown told him Payne had a history of drug use violated rule
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802—the hearsay rule—and was therefore inadmissible under article 38.371(c). Tex.
R. Evid. 802. Officer Anthony Stafford, who responded to the crime scene on
February 20, 2016, testified to Brown’s statements to him about the assaults, including
Brown’s assertion that she did not want to go into the shed where Payne had
assaulted her because he “is known to use meth, and . . . he gets crazy when he uses
meth.” Brown also told Stafford that Payne had thrown a baggie of
methamphetamine in the shed and had handed her a “meth pipe” to hide after he
assaulted her.
Payne failed to object to the drug-use evidence on the basis of hearsay. The
only objection directed to this specific testimony was to “leading questions.”
Although Payne had raised a hearsay objection earlier in Stafford’s testimony when
the State asked Stafford what Brown had told him about the charged offenses, this
was ineffectual to preserve a hearsay objection to Stafford’s later testimony regarding
Payne’s drug use. Thus, this argument is not preserved for our review.5 See Tex. R.
5
Even if the argument were preserved, the evidence was admissible as an
excited utterance. Brown’s statements to Stafford all pertained to her recounting of
the indicted violent offenses. Stafford testified that Brown was “extremely
emotionally drained[,] . . . scared, nervous, [and] worried” when talking to him. After
Stafford noticed that Brown had dried vomit on her shirt, chin, and neck, Brown
explained that Payne’s making her perform “oral sex [had been] so vicious and rough
that it forced her to vomit from it.” We conclude that it was within the trial court’s
discretion to determine that Brown’s statements to Stafford, including her statements
regarding Payne’s past drug use, were excited utterances and, thus, were admissible
under an exception to the hearsay rule. See Tex. R. Evid. 803(2); Zuliani v. State,
97 S.W.3d 589, 595–96 (Tex. Crim. App. 2003); Juarez v. State, 461 S.W.3d 283, 295
(Tex. App.—Texarkana 2015, no pet.); Davis v. State, 268 S.W.3d 683, 703–04 (Tex.
App.—Fort Worth 2008, pet. ref’d).
7
App. P. 33.1(a)(1); Bell v. State, No. 02-18-00244-CR, 2019 WL 1967538, at *3 (Tex.
App.—Fort Worth May 2, 2019, no pet. h.) (mem. op., not designated for
publication); Washington v. State, 449 S.W.3d 555, 565–66 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). We overrule point three.
C. LIMITING INSTRUCTION
In his final point, Payne asserts that the trial court abused its discretion by
refusing his request for an immediate instruction to the jury, informing them of the
appropriate consideration of the relationship-history evidence. See Tex. R. Evid.
105(a). Before Brown began to testify about her past relationship with Payne and
after his admissibility objection had been overruled, Payne requested an immediate
instruction to the jury “that any of this testimony should be limited . . . not for the
guilt/innocence of the charges but . . . to put into context what is under 3[8].371 and
not for the charge [with which] he’s been accused.” The trial court stated its intention
to give the jury an appropriate limiting instruction in the jury charge.6 Payne did not
object to the court’s solution and stated, “Thank you, Judge.” As such, he failed to
preserve this argument for our review.7 See Tex. R. App. P. 33.1(a); Wells v. State,
241 S.W.3d 172, 179 (Tex. App.—Eastland 2007, pet. ref’d). We overrule point five.
6
Payne recognized that such an instruction was included in the jury charge.
7
Even if preserved, we agree with the State that Payne’s substantial rights were
not affected by the failure to give a contemporaneous limiting instruction. See Tex. R.
App. P. 44.2(b).
8
III. CONCLUSION
The admission of evidence of Payne’s past violent relationship with Brown was
not an abuse of discretion, and Payne failed to preserve his arguments that the drug-
use evidence was inadmissible hearsay and that the trial court erred by failing to
contemporaneously instruct the jury of the limits to its consideration of the
relationship-history evidence. Having overruled Payne’s appellate points, we affirm
the trial court’s judgments. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 23, 2019
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