Daniel E. Tunmire v. The State of Texas--Appeal from 213th District Court of Tarrant County

NOS. 12-03-00231-CR

12-03-00232-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DANIEL E. TUNMIRE, APPEAL FROM THE 213TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE TARRANT COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Daniel E. Tunmire ( Appellant ) of two counts of failure to comply with the sex offender registration statute and sentenced him to two concurrent terms of imprisonment for three years. In two issues on appeal, Appellant contends the trial court committed reversible error by allowing hearsay evidence of an extraneous offense. We affirm.

Background

Appellant was convicted of indecency by contact with a nine-year-old female child in August 1996 and was sentenced to imprisonment for four years. He was released from prison in 1998. After his release, Appellant was required, for the rest of his lifetime, to report in person to the local law enforcement authority designated as his primary registration authority and provide the authority with his anticipated move date and new address at least seven days prior to relocating. See Tex. Code Crim. Proc. Ann. art. 62.04 (a) (Vernon Supp. 2004). //

In January 2002, an anonymous caller telephoned Officer Richard Dotson of the Fort Worth Police Department, informing Dotson that Appellant would be moving from his current residence at 3222 Montague in Fort Worth. Dotson began an investigation that revealed Appellant no longer resided at the Montague Street address as of March 26, 2002. Appellant was arrested on April 27, 2002 and charged with violating article 62.04 of the Texas Code of Criminal Procedure.

On May 1, 2002, Appellant updated his registration information with the Fort Worth Police Department to reflect his relocation to Nell Street. On May 20, 2002, an officer from the North Richland Hills Police Department informed Dotson that Appellant was not living at the Nell Street address. Appellant was eventually arrested on August 27, 2002 for failing to report his correct address in violation of article 62.04.

Appellant was charged by two separate indictments with two counts of failure to comply with the sex offender registration statute. He pleaded not guilty to both, and the matter proceeded to a jury trial. At trial, the evidence revealed that Appellant was not residing at either of the addresses that he had reported. Further, the evidence showed Appellant never reported he was residing at the Studio 6 Motel in North Richland Hills. The trial court also allowed hearsay testimony that Appellant was living with his girlfriend named Mary, who was a minor.

The jury found Appellant guilty as charged. The trial court assessed punishment at two concurrent terms of imprisonment for three years. This appeal followed.

Admission of Prejudicial Hearsay Evidence of an Extraneous Offense

In his first issue, Appellant asserts the trial court erred by admitting hearsay evidence of an extraneous offense. In his second issue, Appellant asserts that the extraneous offense was more prejudicial than probative. We will address the issues together.

Standard of Review

We review the trial court s decision to admit or exclude testimony under an abuse of discretion standard. Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992). An abuse of discretion occurs when the trial court acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In determining whether a trial court abused its discretion, we review the trial court s ruling in light of what was before the trial court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998). This standard requires an appellate court to uphold a trial court s admissibility decisions when they are within the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391 (op. on reh g).

Applicable Law

Hearsay is an out-of-court statement offered at trial to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible, absent a rule-based or statutory exception to the hearsay rule. Tex. R. Evid. 802; see Philpot v. State, 897 S.W.2d 848, 851 (Tex. App. Dallas 1995, pet. ref d). Out-of-court statements are typically excluded because they are not made under the usual testimonial conditions oath, personal appearance at trial, and cross-examination and therefore lack the conventional indicia of reliability. California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970). Thus, hearsay rules provide assurance that evidence introduced at trial will be reliable. Smith v. State, 88 S.W.3d 652, 658 (Tex. App. Tyler 2002, pet. ref d) (citing Green, 399 U.S. at 155, 90 S. Ct. at 1933.)

Evidence of extraneous offenses is usually not allowed because an accused may not be tried for some collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). However, evidence of extraneous offenses may be allowed to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Tex. R. Evid. 404(b).

Once otherwise inadmissible character evidence is shown to be relevant and admissible under Rule 404(b), the court must consider whether the evidence should be excluded on grounds contemplated by Rule of Evidence 403. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). Rule 403 states that, [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. Thus, relevant evidence may be excluded if the tendency of the evidence is to suggest a decision on an improper basis. Montgomery, 810 S.W.2d at 388-89 (op. on reh g). Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Rule 403 carries the presumption that relevant evidence will be more probative than prejudicial. Id.

Analysis

Officer Dotson testified for the State. During his rebuttal testimony, Dotson stated that he received a call that Appellant was living with a runaway female named Mary, who was a minor. Appellant objected that this testimony was prejudicial hearsay. The trial court overruled Appellant s objection and granted a running objection. Appellant contends that the admission of Officer Dotson s testimony was reversible error. The State argues that Appellant opened the door to the testimony when, on cross examination, Appellant s counsel asked Officer Dotson if he was aware of Appellant doing anything that was illegal except not reporting his change of address.

We agree that Appellant opened the door to rebuttal testimony pertaining to any illegal activity in which Appellant may have been involved. That does not mean that such testimony is necessarily invited into evidence in any form, including hearsay. See Kipp v. State, 876 S.W.2d 330, 337 (Tex. Crim. App. 1994). However, we need not determine whether the admission of Officer Dotson s testimony was error because a review of the record indicates that similar testimony was admitted later without objection.

Generally, an objection must be made every time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Failure to make the necessary objection risks waiving the objection. Id. Courts have allowed running objections to eliminate redundant and disruptive individual objections, promoting an orderly progression of the trial. Sattiewhite v. State, 786 S.W.2d 271, 284 n. 4 (Tex. Crim. App. 1989). But use of the running objections is limited. Id.; see Goodman v. State, 701 S.W.2d 850, 863 (Tex. Crim. App 1985), overruled in part on other grounds, Hernandez v. State, 757 S.W.2d 744, 751-52 n. 15 (Tex. Crim. App. 1988) (finding running objection did not preserve error when other witnesses testified in between the time the objection was made and the evidence was reintroduced); White v. State, 784 S.W.2d 453, 461 (Tex. App. Tyler 1989, pet. ref d) (allowing a running objection to cover the testimony of one witness, but not that of five subsequent witnesses). Goodman stands for the proposition that an advocate who lodges a running objection should take pains to make sure it does not encompass too broad a reach of subject matter over too broad a time or over different witnesses. Sattiewhite, 786 S.W.2d at 284 n.4.

The record shows that Appellant initiated his running objection during the testimony of Officer Dotson. However, Appellant s daughter, Danielle Tunmire, testified after Dotson. She stated that Mary was Appellant s girlfriend and that they had been living together since 2001. At the time of trial, Mary was seventeen years old. // Later in her testimony, Danielle again stated that Mary lived with Appellant and that every time she saw Appellant, Mary was with him. Danielle also testified that each time Appellant moved, Mary moved with him, including when he was staying at the Studio 6 Motel. Additionally, Amanda Tunmire, who was also Appellant s daughter, testified that Mary was living at the Studio 6 Motel with Appellant. Appellant did not object to either daughter s testimony.

Appellant s running objection did not apply to the testimonies of Amanda and Danielle. See Sattiewhite, 786 S.W.2d at 284 n. 4. Consequently, to preserve error, Appellant was required to object when Danielle and Amanda testified about his relationship with Mary. However, he failed to do so, thereby waiving the issue. We overrule Appellant s first and second issues.

Disposition

Having overruled each of Appellant s issues, we affirm the trial court s judgment.

DIANE DEVASTO

Justice

Opinion delivered September 8, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)