Russell John Cushing v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00296-CR

Russell John Cushing,

Appellant

v.

The State of Texas,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F37252

MEMORANDUM Opinion

  Russell Cushing was indicted for one count of intoxication assault with a deadly weapon and one count of failure to stop and render aid. Tex. Pen. Code Ann. 49.07 (Vernon 2003); Tex. Transp. Code Ann. 550.021(a) (Vernon 1999). Cushing pled guilty and elected to have the jury set punishment. The jury assessed punishment at ten years confinement and a $10,000 fine for intoxication assault and five years confinement and a $5,000 fine for failure to stop and render aid. Cushing brings three issues on appeal: (1) witness testimony was irrelevant, involved extraneous offenses, and created unfair prejudice that outweighed its probative value; (2) witness testimony should have been excluded because the witnesses were not qualified to testify as experts; and (3) the State s argument to the jury was inappropriate.

We will overrule the issues and affirm the judgment.

BACKGROUND

Cushing was an employee at a tire store in Fort Worth. Franklin, one of Cushing s fellow employees, testified that on the day of the alleged offense he, Cushing, and another employee stayed at the tire store after closing. He testified that Cushing sent him to a store to buy beer. The employees drank beer while Franklin worked on his car and Cushing did paperwork for the store. Cushing, driving his own car, followed Franklin to Franklin s mother s house to drop off Franklin s car. Cushing drove Franklin to Franklin s house, but stopped along the way to purchase more beer. Franklin testified that he invited Cushing into his home in an attempt to sober him up. However, when Franklin went to pick up his roommate from a drive-in restaurant, he suggested that Cushing follow him so that he could lead Cushing to the main road. Cushing got in his car and followed Franklin.

Franklin testified that Cushing was driving erratically, following too closely and then dropping far behind. He testified that he heard screaming, and then heard Cushing yell, Just go! When Franklin and Cushing arrived at the restaurant, Franklin saw that Cushing s windshield was broken and that the front of his car was damaged. He testified that Cushing told him, You didn t see anything. You don t tell nobody. Franklin gave Cushing directions home and Cushing drove away.

Melissa, the victim, and her two children were visiting her friend Mary and Mary s family. Melissa was walking through the neighborhood with Mary s two teenage daughters when Melissa was struck by Cushing s car. Melissa was thrown onto the right side of the vehicle s hood and her head cracked the windshield.

Franklinreturned to the scene of the accident and spoke to a police officer at the scene. Police stopped Cushing s vehicle at Cushing s apartment complex. The officers saw the damage to Cushing s car and found brown human hair embedded in the broken windshield. The car contained numerous bottles and cans of beer. Cushing was taken to the police station where he failed several sobriety tests.

Prejudice

Cushing argues that the testimony of two witnesses was irrelevant, involved extraneous offenses, and created prejudice that substantially outweighed any probative value under Rule 403. Tex. R. Evid. 403. First, Cushing complains of the following exchange during the State s direct examination of Franklin:

Witness: He told me You didn t see anything. You don t tell nobody.

Q: That

A: And then he took off. I was giving him directions to get out.

Q: That s what Mr. Cushing told you?

A: Uh-huh.

Q: You didn t see anything Say again what you said.

Defense Counsel: Object. Repetitive, Your Honor. Asked and answered.

Court: Overruled.

Q: What did he say again?

A: You didn t see anything. You don t tell nobody.

Cushing s objection at trial was that the question had already been answered. He did not raise a Rule 403 objection or complain about relevance or extraneous offenses. Thus his issue on appeal does not comport with his complaint at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). His issue with regard to this testimony is not preserved for review.

Second, Cushing complains that during cross-examination the prosecution asked Cushing s ex-wife if Cushing was ever verbally or physically abusive. Defense counsel raised objections on relevance, introduction of extraneous offenses, and prejudice. We review a trial court s ruling on the admissibility of evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will uphold a trial court s ruling if it was within the zone of reasonable disagreement. Id.

When defense counsel delves into a matter on direct examination, the State may develop the same subject matter on cross-examination. Wiggins v. State, 778 S.W.2d 877, 895 (Tex. App. Dallas 1989, pet. ref d). On direct, defense counsel questioned Cushing s ex-wife about Cushing s alcohol abuse, how that abuse had caused problems in their marriage, and how Cushing behaved when he was intoxicated. The State was entitled to develop those matters on cross-examination. Even if the trial court had erred in allowing the question and answer, Cushing fails to show that he was harmed. His ex-wife s testimony did not depict Cushing as an abusive person.

We overrule the issue.

Expert Testimony

Cushing argues that the testimony of two different witnesses exceeded the scope of their expertise. The qualifications of a witness to testify as an expert or as a lay person is within the discretion of the trial court. See Tex. R. Evid. 104(a); Harnett v. State, 38 S.W.3d 650, 657 (Tex. App. Austin 2000, pet. ref d).

First, Cushing complains of the following exchange during the State s direct examination of the victim s mother:

State: Right now do we have any idea from the doctors if she s ever going to get better than she is?

Defense: Objection, Your Honor. Speculation

State: If she knows.

Court: You can answer.

Defense: Objection. Goes beyond the scope of this witness s knowledge.

Court: You can answer if you know the answer.

Witness: They don t have any idea.

Cushing argues that the trial court erred in allowing the witness to answer because she does not have the expertise to testify as to whether the victim s condition will improve. However, the witness did not testify to her opinion about the victim s prospects for improvement; rather, she testified to what the doctors had told her. We do not consider whether the testimony was inadmissible hearsay because that issue has not been raised.

Second, Cushing complains that the State asked Officer Hendrick, who interviewed Cushing upon his arrest, whether an appearance of confusion, not knowing the time, and having time lapses could be an indication of someone trying to be deceptive. Cushing objected on the grounds that it called for speculation. Cushing now complains that Hendrick was not qualified as an expert. Even if we were to find that his objection was sufficient to preserve his issue on appeal, and we were additionally to find that the trial court abused its discretion in allowing the officer to answer, Cushing fails to demonstrate that he was harmed by the testimony about which he complains. The officer testified that he did not conclude that Cushing was attempting to deceive him.

We overrule this issue.

Inappropriate Argument

Cushing argues that the prosecution argued inappropriately. Specifically, he complains of the prosecution s comparing the conditions imposed on Cushing as a result of a prior DWI to the conditions Cushing would be under if the jury assessed probation:

State: . . . Are we going to give him that chance again? Are we really? Because you see, probation is essentially the same as the Tarrant County charge he got.

Defense: Objection, Your Honor. Mischaracterization of the evidence.

Court: Sustained. If you will please rephrase, please.

Defense: Please instruct the jury to disregard.

Court: Overruled.

State: It is essentially the same. Because you see, he goes home everyday

Defense: Objection.

State: -- on probation.

Court: Sustained, if you ll rephrase, please.

State: On probation he gets to go home every day. And he s got rules to follow just like he did in Tarrant County. If he doesn t follow them, if he messes up, who gets hit next time? Who gets hurt next time?

Defense: Objection. Inappropriate argument, Your Honor.

Court: Overruled.

A proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). But when a prosecutor s statement falls outside of these parameters, the statements themselves cannot be error. Rather, it is the trial court s responses to defense counsel s objections to the statements that may be error. Chimney v. State, 6 S.W.3d 681, 703 (Tex. App. Waco 1999, pet. ref d). Usually three types of error are possible: (1) overruling the initial objection to the prosecutor s statement; (2) granting the initial objection, but denying a request for an instruction to the jury to disregard the statement; and (3) granting the initial objection and instructing the jury to disregard, but denying a motion for a mistrial. Id.

Cushing does not clearly state which type of error he believes the trial court committed. The trial court sustained his first two objections to the prosecution s argument, and he does not specifically complain about the court s overruling his third objection. Cushing did not ask for a mistrial, so a complaint regarding the third type of error would not be preserved. His request for an instruction was overruled, so the second type of error denying his request for a jury instruction would seem the likeliest about which to complain. However, he states in his brief that even if the trial court had instructed the jury to disregard the comments, the prosecution s remarks were so inflammatory that such an instruction could not have overcome their prejudicial effect. If that were true, it is difficult to see how the court s failure to give the instructions could have harmed him.

Moreover, Cushing fails to explain why the prosecution s remarks were improper, how he was harmed by those allegedly improper remarks, or why those remarks were prejudicial and inflammatory. For an improper argument to rise to a level mandating reversal, the argument must be extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). We find nothing in the prosecution s arguments that would mandate reversal.

We overrule this issue.

CONCLUSION

Having overruled the issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 20, 2005

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