Thurman, Thomas Lee v. The State of Texas--Appeal from Co Crim Ct at Law No 10 of Harris County

Affirmed and Memorandum Opinion filed November 23, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00732-CR

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THOMAS LEE THURMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law No. 10

Harris County, Texas

Trial Court Cause No. 1218604

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M E M O R A N D U M O P I N I O N

Thomas Lee Thurman appeals a conviction for misdemeanor assault[1] on the grounds that the trial court erred by: (1) overruling his objection to the State=s cross-examination of appellant concerning extraneous offenses; and (2) considering personal knowledge of misconduct by appellant not otherwise in evidence while assessing punishment. We affirm.

Appellant=s first issue contends that the trial court erred by permitting the State to cross-examine him during the guilt-innocence phase regarding unadjudicated extraneous offenses because his character was not an essential element of the charged offense (which is undisputed) and because he did not Aopen the door@ to proof of the extraneous conduct.

A trial court=s ruling on the admissibility of extraneous offenses is reviewed for abuse of discretion. Prible v. State, ___ S.W.3d ___, 2005 WL 156555, *5 (Tex. Crim. App. 2005), cert. denied, __ U.S. __, 126 S. Ct. 481 (2005). When a party introduces matters into evidence, he invites the other side to reply to that evidence. Wheeler v. State, 67 S.W.3d 879, 885 n.13 (Tex. Crim. App. 2002). Thus, when a witness presents a picture that the defendant is not the type of person to commit the charged offense, the prosecution may impeach that witness=s testimony by cross-examining the witness concerning similar extraneous offenses committed by the defendant. Id. at 885. Generally, a defendant who testifies may be impeached as any other witness may be impeached. Morenov. State, 22 S.W.3d 482, 485 (Tex. Crim. App. 1999).

Ordinarily, to be subject to rebuttal with extraneous offense evidence, such a defensive theory must be elicited on direct examination by the defense, rather than by prompting or maneuvering on cross-examination by the State. Id. However, during cross-examination in this case, after denying he assaulted the complainant, appellant repeatedly volunteered[2] that he was not a violent person and would not hurt the complainant. The State was therefore entitled to respond to the impression that his comments presented by introducing similar extraneous offenses.[3] Because appellant=s first issue thus fails to demonstrate that the trial court abused its discretion in admitting this evidence, it is overruled.

Appellant=s second issue argues that the trial court erred in sentencing him by considering its personal knowledge of an incident, not otherwise in evidence, in which the appellant allegedly confronted a juror after the jury had been dismissed.[4] However, the record reflects that defense counsel raised this issue only by asking the trial court to refrain from considering it in assessing punishment, and the trial court responded that it was basing its sentencing decision only on evidence in the record and appellant=s courtroom conduct and credibility. Appellant did not object to the trial court=s sentence or file a motion for a new trial. Thus, because appellant did not obtain an adverse ruling on this complaint, he has not preserved it for our review. See Tex. R. App. P. 33.1. In addition, appellant cites no evidence supporting his allegation that, contrary to the trial court=s statements in the record, the trial court=s sentencing decision was influenced by this matter.[5] Accordingly, his second issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed November 23, 2005.

Panel consists of Justices Fowler, Edelman and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty, and the trial court assessed punishment of 180 days confinement.

[2] During cross-examination, appellant volunteered the following non-responsive comments: AAnd I=ve made mistakes in the world but, it was never a mistake to try to hurt [the complainant] in any way@; AI=m not into violence@; AI=m not a violent person@(repeated twice); and AI prefer not to turn to violence. I don=t go out shooting guns and hitting people in the head or whatever. . . . I don=t take an innocent person and just try to hurt them.@ After his initial statements that he was not a violent person, the State was permitted, over objection, to question appellant regarding two prior assault charges involving the same complainant.

[3] See e.g., Lopez v. State, 928 S.W.2d 528, 531 (Tex. Crim. App. 1996); Baxter v. State, 645 S.W.2d 812, 816 (Tex. Crim. App. 1983).

[4] According to the trial court=s remarks in the record, the juror reported the incident to the bailiff, who in turn reported the incident to the trial court.

[5] Moreover, appellant stipulated to evidence of the following prior convictions: (1) a felony theft from 1999; (2) a possession of marijuana from 1987; (3) two driving with license suspended convictions from 1986 and 1987; and (4) a deferred adjudication for a felony possession of a controlled substance, which was completed in January 2004. Because appellant pled true to the enhancement, and the trial court found it true, the punishment range for this offense ranged from 90 days to one year. See Tex. Penal Code Ann. ' 12.43(a) (Vernon 2003). Considering appellant=s criminal history and the range of punishment for this offense, the 180 day sentence imposed by the trial court fails to suggest consideration of matters not in the record.