Jerimie McDonald v. the State of Texas ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00090-CR
JERIMIE MCDONALD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 29015
Before Morriss, C.J., Stevens and Carter,* JJ.
Memorandum Opinion by Chief Justice Morriss
_____________________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
Although there was a Magistrate’s Order of Emergency Protection (EPO) in effect on
behalf of his ex-girlfriend, Haley Magnuson, that prohibited Jerimie McDonald from going
within 250 feet of Magnuson’s residence, McDonald violated the EPO two times within one
week. As a result, a Lamar County jury found McDonald guilty of violating a protective order
two or more times within twelve months1 and assessed him a punishment of eight years’
imprisonment. On appeal, McDonald asserts that the trial court reversibly erred by admitting an
unredacted copy of the EPO. Because we find that McDonald procedurally defaulted his
complaint, we affirm the trial court’s judgment.
At trial, the State offered a copy of the EPO as its exhibit 1. McDonald objected to the
admission of one paragraph of the EPO, which read, “This Order is valid for 91 days. [Must be
31-61 days, unless the Defendant used or exhibited a deadly weapon during the commission of
an assault, in which case must be 61-91 days].” He asked that the paragraph be removed or
redacted from the order because it was prejudicial and “it [went] to the underlying assault case.”
The trial court overruled the objection and admitted the EPO into evidence.
In his sole issue, McDonald argues that the trial court reversibly erred in admitting the
unredacted EPO because the objected-to paragraph was not relevant to any issue in the case and
was unfairly prejudicial. See TEX. R. EVID. 402, 403. However, after the trial court admitted the
unredacted EPO, Sergeant Matt Birch of the Paris Police Department testified, without objection,
that, in instances of family violence that involves serious bodily injury or a deadly weapon being
1
See TEX. CODE CRIM. PROC. ANN. art. 17.292 (Supp.); TEX. PENAL CODE ANN. § 25.07(a), § 25.072(a) (Supp.).
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exhibited, the issuance of an emergency protective order was mandatory, that the issuance of this
EPO was required by law, and that the EPO may be issued for thirty-one, sixty-one, or ninety-
one days based on the circumstances.2
[T]o preserve error in admitting evidence, a party must make a proper objection
and get a ruling on that objection. In addition, a party must object each time the
inadmissible evidence is offered or obtain a running objection. An error [if any]
in the admission of evidence is cured where the same evidence comes in
elsewhere without objection.
Davis v. State, 614 S.W.3d 223, 228–29 (Tex. App.—Texarkana 2020, no pet.) (alterations in
original) (quoting Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Valle v.
State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003))). “This rule applies whether the same
evidence was admitted ‘without objection . . . before or after the complained-of ruling.’” Id.(quoting Lane, 151 S.W.3d at 193 (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.
App. 1998))).
Because McDonald did not object to Birch’s testimony or obtain a running objection, he
procedurally defaulted this complaint. Because the issue is not presented for our review,3 we
overrule his sole issue.
2
The EPO was issued pursuant to the following statute:
(b) At a defendant's appearance before a magistrate after arrest for an offense involving
family violence, the magistrate shall issue an order for emergency protection if the arrest is for an
offense that also involves:
(1) serious bodily injury to the victim; or
(2) the use or exhibition of a deadly weapon during the commission of an assault.
TEX. CODE CRIM. PROC. ANN. art 17.292(b).
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For the reasons stated, we affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 03, 2022
Date Decided: March 15, 2022
Do Not Publish
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We also note that McDonald objected to the entire paragraph and requested that it be redacted. This included the
statement that the order was valid for ninety-one days, which was not unfairly prejudicial and was relevant to show
that the EPO was in effect when McDonald committed the two violations of the EPO. As such, this statement was
admissible.
In order to preserve a complaint for appellate review, “a party must first present to the trial court a timely
request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context.”
Mims v. State, 607 S.W.3d 419, 428 (Tex. App.—Texarkana 2020, pet. ref’d) (citing TEX. R. APP. P. 33.1(a)(1)).
Further, “[w]hen an exhibit contains both admissible and inadmissible evidence, the objection must specifically refer
to the challenged material to apprise the trial court of the exact objection.” Sonnier v. State, 913 S.W.2d 511, 518
(Tex. Crim. App. 1995). If the objection does not specifically point out which part of the evidence is inadmissible,
then it is insufficient to preserve any error in the admission of the evidence. See Whitaker v. State, 286 S.W.3d 355,
369 (Tex. Crim. App. 2009). Because McDonald objected to the entire paragraph without specifying which portions
were inadmissible, he has not preserved this complaint for our review. See id.“Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d 530, 532 (Tex.
Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). An appellate court should
not address the merits of an issue if it has not been preserved for appeal. Id. Consequently, we should review
preservation of error on our own motion, even if the parties have not raised the issue. Id. at 532–33.
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