BOBBY WRAY LAMB v. THE STATE OF TEXAS--Appeal from 176th District Court of Harris County

NUMBER 13-03-630-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BOBBY WRAY LAMB, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 176th District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Garza

A jury convicted appellant, Bobby Wray Lamb, of sexual assault and sentenced him to twenty-three years imprisonment. See Tex. Penal Code Ann. 22.011 (Vernon Supp. 2004 05). Appellant now challenges his conviction by two issues: (1) the trial court erred by excluding from evidence at the punishment phase of trial testimony that showed appellant was in a psychiatric hospital at the time of his arrest; and (2) appellant s trial counsel rendered ineffective assistance of counsel. During oral argument, counsel for appellant withdrew appellant s second issue. Having reviewed the record and the arguments and authorities presented by appellant, we conclude that the trial court did not abuse its discretion by excluding the proffered evidence to show appellant was in a psychiatric hospital at the time of his arrest. Accordingly, we overrule appellant s sole issue and affirm the judgment of the trial court.

I. Exclusion of Evidence at the Punishment Phase of Trial A trial court s decision to admit or exclude evidence is reviewed for abuse of discretion. Green v. State, 934 S.W.2d 92, 101 02 (Tex. Crim. App. 1996); Ford v. State, 26 S.W.3d 669, 672 (Tex. App. Corpus Christi 2000, no pet.). Under Section 3(a)(1) of Article 37.07 of the Texas Code of Criminal Procedure, the State and the defendant may offer evidence during the punishment phase of a trial as to:

any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex. Code Crim. Proc. art. 37.07 3(a)(1) (Vernon Supp. 2004 05); Mendiola v. State, 21 S.W.3d 282, 284 (Tex. Crim. App. 2000). In Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999), the court of criminal appeals explained that rule 401 was helpful in determining what evidence is relevant under article 37.07 section 3(a)(1) but noted that rule 401 s definition of relevant was not a perfect fit in the sentencing context. Tex. Code Crim. Proc. Ann. art. 37.07 3(a)(1); Tex. R. Evid. 401. As the court explained in Miller-El v. State, 782 S.W.2d 892, 895 96 (Tex. Crim. App. 1990):

admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy. This is so because by and large there are no discreet factual issues at the punishment stage. There are simply no distinct facts . . . of consequence that proffered evidence can be said to make more or less likely to exist. Rather, deciding what punishment to assess is a normative process, not intrinsically factbound.

(footnotes and citations omitted). Based on this reasoning, the Rogers court concluded, What is relevant . . . [is] a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers, 991 S.W.2d at 265.

Before the punishment phase of trial commenced, the following exchange occurred between appellant s trial counsel, the trial court, and counsel for the State:

MR. GREENLEE [(Appellant s trial counsel)]: Your honor, for the purpose of the record, I d talked with Mr. Thompson representing the State with regard to a police officer E.B. Young. Officer Young s name had been mentioned during the course of the trial in chief, the guilt or innocence phase, as the officer, as one of the officers who was involved in the arrest of the defendant. I would like to call Officer Young for purposes of asking these two [sic] questions: Officer Young, did you run or execute a warrant with regard to Bobby Lamb? Yes, I did. And did that warrant come back to a particular location for the defendant? It did. And where was that location? The Harris County Forensic Center.

I think that during the punishment phase of the trial, your Honor, information with regard to the background of the defendant is appropriate in terms of allowing the jury or helping or aiding the jury in assessing and imposing whatever punishment, similar to the jury has the right to know about someone s prior criminal history during the punishment phase. This would give me an opportunity to present to the jury for its consideration that Mr. Lamb may have some mental health issues which may in part give them an idea, if they re concerned about why he would, in fact, engage in the conduct. I think it goes to the issue of knowing a little bit more about the defendant, which is what is brought to a jury s attention during the punishment phase.

THE COURT: And the State s objection is?

MR. THOMPSON: Is based on relevance. There would be no testimony regarding Mr. Lamb s mental capacity nor has the issue been raised by a motion at this point. The location of the arrest has no relevance to the proceedings, and we d object.

The trial court sustained the State s objection, and appellant now claims that the ruling amounted to reversible error.

Appellant argues that his location at the time of his arrest (i.e., a psychiatric hospital) was relevant in the punishment hearing because it would have established his state of mind following the commission of the offense. According to appellant, the jury could have inferred from his location that appellant was mentally ill, which might have led to a lesser sentence. In addition, appellant argues that the trial court s ruling foreclosed him from presenting evidence that he was mentally impaired during and after the offense.

In response, the State contends that nothing in article 37.07 entitles a defendant to introduce evidence of his or her post-offense mental condition during the punishment phase of trial. The State also points out that appellant requested the admission of only the location of his arrest, not evidence regarding his mental health. According to the State, the location of appellant s arrest would be unhelpful to the jury in assessing punishment and would have been extremely misleading because it would have allowed the jury to speculate as to appellant s mental condition based solely on his location at the time of his arrest.

Neither appellant nor the State has provided this Court with any case law directly addressing the issue of whether the location of a defendant s arrest is admissible in a punishment hearing to show that the defendant had an impaired mental state either during or after the commission of an offense. Appellant cites Contreras v. State, 59 S.W.3d 362, 365 (Tex. App. Houston [1st Dist.] 2001, no pet.) for the proposition that mitigating evidence arising after the offense is not per se inadmissible. Although we do not disagree with this statement of the law, we cannot conclude that the trial court abused its discretion in this case.

Appellant s mental state during and after the offense may have been relevant to the jury s determination of an appropriate punishment, but appellant s location at the time of his arrest and his mental state are not one and the same. Appellant could have offered significantly more relevant testimony to establish a diminished mental capacity. For instance, Dr. Steven Rubenzer, who certified appellant as competent to stand trial, might have been called to testify to the significant [mental] deficits noted in his competency evaluation of appellant. Appellant could have testified as to whether he had ever been treated for drug addiction or mental illness. These possibilities could have led to the introduction of evidence establishing appellant s diminished mental state, and most importantly, these possibilities were not foreclosed by the trial court s ruling. The State s objection was merely to appellant s place of arrest being introduced on its own, without direct evidence of appellant s mental condition. Given these considerations, we cannot conclude that appellant was prohibited from introducing direct evidence of his mental condition. Therefore, the error, if any, did not affect appellant s substantial rights. See Tex. R. App. P. 44.2(b). Appellant s sole issue before this Court is overruled.

III. Conclusion

Having overruled appellant s sole issue on appeal, this Court affirms the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 3rd day of February, 2005.