Vincent Price McCowan, Jr. A/K/A Vincent Price McCowan v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00076-CR
VINCENT PRICE MCCOWAN, JR. APPELLANT
A/K/A VINCENT PRICE MCCOWAN
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In two points, Appellant Vincent Price McCowan, Jr. a/k/a Vincent Price
McCowan appeals his conviction for assault causing bodily injury to a family or
household member with a prior conviction, a third-degree felony. See Tex. Penal
Code Ann. § 22.01(b)(2)(A) (West 2011). We will affirm.
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See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
McCowan and Tuluara Ford had been dating for two or three years and
living together when on December 25, 2009, they were involved in a domestic
dispute that led to McCowan’s prosecution in this cause. According to Ford, the
argument began when they were at McCowan’s mother’s house on Christmas
Eve. Ford said something to McCowan, who was “in one of his moods,” and
McCowan “raise[d] his hand to” Ford, but his brother stopped him from hitting
her. After Ford and McCowan returned home, they began arguing about the
television, and McCowan slapped Ford’s face, causing her ear to ring. The two
continued arguing, and McCowan hit Ford’s face and head; Ford hit McCowan
back. During the struggle, Ford reached for her cell phone to call the police, and
they wrestled over the phone; McCowan fractured Ford’s pinky finger and broke
her phone.
Sometime after the two had cooled off, McCowan wanted to have sex with
Ford, and when Ford refused, McCowan urinated on her while she lay in bed.
After Ford showered, McCowan got in her face and headbutted her. McCowan
told Ford that he wanted her to hit him, and when Ford pushed him, they started
fighting again. When Ford realized that McCowan was too strong for her, she
gave up and went to the living room to check on her daughter, but McCowan
dragged Ford to the bathroom by her hair, causing some of her hair to come out,
and kicked her side.
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Later, Ford tried to use the computer to contact someone, but McCowan
dropped part of the computer on the floor. After McCowan left the apartment,
Ford found an old cell phone and managed to contact her cousin. Ford’s mother
and the police showed up later.
Ford testified at trial that in addition to a broken finger, she suffered
contusions on her arms and head caused by McCowan and could not use her
right hand for a while. Ford also confirmed that McCowan had pleaded guilty to
assaulting her on October 26, 2007, and she described some of the facts
underlying that conviction.
McCowan’s version of events differed from Ford’s. He testified that Ford
attacked him with a razor while he was showering because she had discovered
that he was cheating on her. McCowan claimed that he did not cause any of
Ford’s injuries and that he was the victim. During his cross-examination,
McCowan mentioned that a Houston police officer had identified him as a
member of a particular gang based on his tattoos, but he denied any current
gang involvement. The State later called a rebuttal witness who testified that
McCowan’s tattoos are commonly associated with one particular gang.
A jury convicted McCowan and assessed his punishment at seven years’
confinement.
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III. PRESERVATION OF ERROR
A. Gang Tattoos Testimony
In his first point, McCowan argues that the trial court’s admission of
irrelevant testimony regarding gang tattoos on his body deprived him of his due
process and due course of law rights under the federal and state constitutions.
A complaint made on appeal must comport with the complaint made in the
trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex.
Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.
2009) (“A complaint will not be preserved if the legal basis of the complaint raised
on appeal varies from the complaint made at trial.”). To determine whether the
complaint on appeal comports with that made at trial, we consider the context in
which the complaint was made and the parties’ shared understanding at that
time. Clark, 365 S.W.3d at 339; Resendez v. State, 306 S.W.3d 308, 313 (Tex.
Crim. App. 2009). Constitutional errors are generally forfeited by failure to object
at trial. Clark, 365 S.W.3d at 339 (“[I]f a party fails to properly object to
constitutional errors at trial, these errors can be forfeited.”); Curry v. State, 910
S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see Anderson v. State, 301
S.W.3d 276, 280 (Tex. Crim. App. 2009) (“[N]umerous constitutional rights,
including those that implicate a defendant’s due process rights, may be forfeited
for purposes of appellate review unless properly preserved.”). Further, to
preserve error, a party must continue to object each time the objectionable
evidence is offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003);
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Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v.
State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)).
Here, when the State called the witness to testify about McCowan’s
purported gang tattoos, McCowan objected that the testimony was more
prejudicial than probative, presumably under rule 403. And when the State
sought to admit photographs of McCowan’s tattoos, he asserted a relevance
objection. In neither instance did McCowan assert a due process or due course
of law objection. McCowan also failed to continue objecting to the testimony
about his tattoos, and he did not obtain a running objection or request a hearing
outside the presence of the jury. McCowan thus failed to preserve this first point
for appellate review. See Clark, 365 S.W.3d at 339; Lovill, 319 S.W.3d at 691–
92. We overrule McCowan’s first point.
B. October 26, 2007 Judgment and Sentence and Underlying Facts
In his second point, McCowan argues that he was denied his right to not
be tried as a criminal in general because, although he stipulated to his
October 26, 2007 conviction for assault–family violence, the trial court admitted
the judgment and sentence and underlying facts of the prior conviction.
If a trial court hears objections to proffered evidence outside the jury’s
presence and rules that the evidence is admissible, the objections are deemed to
apply to the evidence when it is admitted before the jury without the necessity of
repeating the objections. Tex. R. Evid. 103(a)(1); Haley v. State, 173 S.W.3d
510, 517 (Tex. Crim. App. 2005); Geuder, 115 S.W.3d at 13–14; Ethington, 819
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S.W.2d at 859. However, appellate review of a trial court’s ruling on the
admissibility of evidence made outside a jury’s presence is forfeited if the
defendant affirmatively asserts that he has “no objection” when the evidence is
offered. See James v. State, 772 S.W.2d 84, 97 (Tex. Crim. App.), vacated on
other grounds, 493 U.S. 885 (1989); see also Tucker v. State, 990 S.W.2d 261,
263 n.11 (Tex. Crim. App. 1999). Further, any error in the admission of evidence
is cured when the same evidence is admitted elsewhere without objection. See
Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).
Here, at a pretrial hearing, McCowan objected when the State offered
State’s Exhibit 2, the judgment and sentence for the 2006 conviction, but when
the State offered the same exhibit at trial, McCowan stated, “No objection.” As
for McCowan’s argument about the admission of the underlying facts of the 2006
conviction, he asserted an objection when the State began to elicit that testimony
from Ford, but the State had already elicited similar testimony without objection
from Ford’s mother. For these reasons, McCowan failed to preserve his second
point for appellate review. See James, 772 S.W.2d at 97; see also Lane, 151
S.W.3d at 193. We overrule McCowan’s second point.
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IV. CONCLUSION
Having overruled McCowan’s two points, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 16, 2013
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