Kevin Wade Conner v. The State of Texas--Appeal from County Court at Law of Cherokee County

NO. 12-06-00311-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEVIN WADE CONNER, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW OF

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Kevin Wade Conner appeals his conviction for telephone harassment. Appellant raises nine issues on appeal. We affirm.

Background

Appellant was arrested for public intoxication and taken to the Cherokee County Jail. At the time of his arrest, Appellant had observed circumstances that caused him to believe that his wife, Penny Conner, was engaged in an extramarital sexual affair with one of his lifelong friends.1 While at the booking area of the jail, Appellant placed a telephone call to Conner. Pursuant to the jail s standard policy, the call was recorded without notice to either Appellant or Conner. During the call, Appellant threatened Conner, indicating that, once out of jail, he planned to hunt down Conner and physically assault her.

 

The Cherokee County Attorney filed an information charging Appellant with telephone harassment. At trial, over Appellant s objection, the audio recording of the telephone call between Appellant and Conner was played for the jury. Appellant requested that the jury charge include an instruction regarding the exclusionary rule pertaining to evidence secured in violation of the law. The trial court denied Appellant s request. The jury returned a verdict of guilty and assessed Appellant s punishment at 180 days of confinement and a fine of $1,000, with a recommendation that the sentence be probated. The trial court probated Appellant s sentence and ordered that Appellant serve two years of community supervision and pay a $500 fine. This appeal followed.

Hearsay

In his first issue, Appellant argues that the trial court erred in allowing hearsay evidence during the testimony of Deputy Joshua Jenkins of the Cherokee County Sheriff s Department.

Our review of the record reveals three hearsay objections made by Appellant during Deputy Jenkins s testimony. One of the hearsay objections was sustained, while the other two objections were overruled. The two instances of overruled objections are as follows:

Q All right, sir. Did you have an occasion to go to the sheriff s department of Cherokee County, to the dispatch office?

A Yes, sir, I did.

Q . . . [W]hat did you understand that call to require of you?

A I was informed by- -

[DEFENSE COUNSEL:] Respectfully, Your Honor, I believe that s hearsay.

THE COURT: What was the question?

[PROSECUTOR:] What was the nature of the call to report to the Cherokee County Sheriff s Department dispatch.

THE COURT: Overruled.

[A] The call I received was from the dispatcher there at the sheriff s office, who stated that a jailer had overheard threatening statements being made from an inmate that was speaking to someone on the phone.

. . . .

Q Okay. What did you do, once you got there, sir?

 

A I walked inside the dispatch area there. The female jailer-- I mean the female communications officer, identified as Mary Pyle, told me that--

[DEFENSE COUNSEL:] Objection, Your Honor. That s hearsay, what another person told him.

THE COURT: Overruled.

[A] She told me that a jailer had informed her that he had overheard some threatening statements being made over the telephone. I believe that the jailer had her call me up to the sheriff s office to listen to that recording.

The erroneous admission of hearsay evidence is nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded. Tex. R. App. P. 44.2(b). Therefore, even if the trial court erred in overruling Appellant s hearsay objections, the error would not warrant reversal unless it had a substantial and injurious effect or influence in determining the jury s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

The two statements Appellant contends are hearsay each contain the same fact, that an inmate at the jail had made threatening statements to someone over the telephone. Deputy Jenkins went on to testify, without objection, that the parties to the call in question were Appellant and Penny Conner. Jenkins also testified, without objection, about the content of the call. He stated that, during the call, Appellant told Penny Conner

[y]ou know your shit is weak. . . . I m coming after your ass. They can only keep me here so long. . . . When I get out, we re going to talk, maybe talk with my goddam fists.

In the context of Deputy Jenkins s testimony regarding these specific statements made by Appellant, we cannot conclude that Jenkins s earlier nonspecific testimony had a substantial and injurious effect or influence in determining the jury s verdict. Therefore, we overrule Appellant s first issue. See id.

Recording of Phone Conversation

In his second, third, and fourth issues, Appellant complains that the recording of his telephone conversation with Penny Conner was wrongly admitted into evidence because the recording was obtained in violation of the law. Specifically, Appellant argues that his telephone conversation was recorded in violation of Texas Penal Code section 16.02 and, therefore, the admission of the recording into evidence was prohibited by Texas Code of Criminal Procedure article 18.20. See Tex. Penal Code Ann. 16.02 (Vernon Supp. 2007); Tex. Code Crim. Proc. Ann. art. 18.20 (Vernon Supp. 2007).

With certain exceptions, section 16.02 makes it a criminal offense when a person intentionally intercepts. . . a wire, oral, or electronic communication. Tex. Penal Code Ann. 16.02(b)(1). Article 18.20 mandates that recordings of communications intercepted in violation of section 16.02 should not be received into evidence. Tex. Code Crim. Proc. Ann. art. 18.20, 2. Article 38.23 of the Texas Code of Criminal Procedure likewise mandates that evidence obtained in violation of state law may not be admitted against the accused in a criminal case. Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2008).

In the face of a timely and proper objection, the trial court admitted the recording, stating [t]he Court holds it is not in violation [of section 16.02,] and the exhibit is accepted. It is received. Appellant argues that the jail s recording of the conversation in question was a direct violation of section 16.02 and that the State failed to present sufficient evidence to meet any of section 16.02 s exceptions. Because it is unnecessary to do so, we decline to determine whether the trial court erred. Instead, we will assume, without deciding, that the admission of the recording was error and focus on the question of harm.

The erroneous admission of the recording in question is nonconstitutional error. See King, 953 S.W.2d at 271. Nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded. Tex. R. App. P. 44.2(b). Such an error does not warrant reversal unless it had a substantial and injurious effect or influence in determining the jury s verdict. See King, 953 S.W.2d at 271.

We first note that Deputy Jenkins was allowed, without objection by Appellant, to testify as to virtually all harmful statements made by Appellant during the telephone conversation in question. This testimony was not controverted by any witness or piece of evidence. Further, Appellant made no attempt to impeach the credibility of Deputy Jenkins.

In addition, Penny Conner testified, without objection, as to the substance of the telephone conversation. She testified that Appellant threatened her with serious bodily injury. She also stated that Appellant told her my ass needed to be out of town prior to him being released from jail . . . and he told me that we would talk but it would be with his fist. Her testimony regarding these facts was not controverted.

Reviewing the recording itself, we note that its admission provided some benefit to Appellant. The recording contained accusations by Appellant that Conner had lied to him about her whereabouts and had traveled to visit her alleged lover, a friend of Appellant. The recording also contained an allegation by Appellant that he had personally observed Conner visiting the friend. Finally, Conner agreed on the recording that she should not have traveled to visit the friend. After this concession, the recording shows that Appellant admitted he might lose his temper and assault her, but also stated that I m going to try to talk to you. Therefore, while the recording confirmed Appellant s threatening statements to Conner, it also served to support Appellant s theory of the case. Specifically, it supported Appellant s theory that he lacked the requisite intent to harass and was, instead, responding in a foreseeable manner in the context of a husband catching his wife having an affair with one of his friends.

Appellant failed to introduce evidence to controvert the testimony that he made the harassing statements. In fact, Appellant called only one witness during the guilt/innocence stage of trial, jailer Jeremy Woodruff. Woodruff s testimony did not controvert that of Deputy Jenkins or Penny Conner. The trial court s nonconstitutional error, if any, would not warrant reversal unless it had a substantial and injurious effect or influence in determining the jury s verdict. See id. In light of the uncontested facts of this case, we cannot hold that such an effect or influence resulted from the alleged error.2 Therefore, we overrule Appellant s second, third, and fourth issues.

Opinion Testimony

 

In his fifth issue, Appellant argues that the trial court erred in allowing opinion testimony regarding the state of mind of another person during the testimony of Deputy Jenkins. The entirety of Appellant s argument on this issue is as follows:

The trial court erred in admitting over objection a lay opinion regarding the state of mind of another person (Germane to Appellant's objection pursuant to Rule 701 and testimony of Deputy Joshua Jenkins).

Standard of Review and Applicable Law

A trial court s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Absent an abuse of discretion, we do not reverse a trial court s decision to admit evidence. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g). Further, the trial court s decision will be upheld on appeal if it is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). This principle holds true even where the trial court has given an erroneous legal reason for its decision. Id.

 

Both lay and expert witnesses can offer opinion testimony. Texas Rule of Evidence 701 covers the more traditional witness, one who witnessed or participated in the events about which he or she is testifying, while Texas Rule of Evidence 702 allows for a witness who was brought in as an expert to testify. Osbourn, 92 S.W.3d at 535. A witness can testify in the form of an opinion under rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to a clear understanding of the testimony or the determination of a fact in issue. Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Perceptions refer to a witness s interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). Osbourn, 92 S.W.3d at 535. Since rule 701 requires the testimony to be based on the witness s perception, it is necessary that the witness personally observed or experienced the events about which he or she is testifying. Id. (citing Fairow, 943 S.W.2d at 898). Thus, the witness s testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations. Osbourn, 92 S.W.3d at 535. This also incorporates the personal knowledge requirement of Texas Rule of Evidence 602, which states that a witness may not testify to a matter unless he or she has personal knowledge of the matter. Id. (citing Bigby v. State, 892 S.W.2d 864, 889 (Tex. Crim. App. 1994)).

The erroneous admission of the testimony in question would be nonconstitutional error. See King, 953 S.W.2d at 271. Nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded. Tex. R. App. P. 44.2(b). Therefore, such an error, if any, would not warrant reversal unless it had a substantial and injurious effect or influence in determining the jury s verdict. See King, 953 S.W.2d at 271.

Discussion

Although Appellant s brief does not specifically cite the portions of Deputy Jenkins s testimony about which he is complaining, our review of the record reveals twelve instances of testimony that may be the subject of his complaint. In each instance, Deputy Jenkins had formed his opinion after reviewing the recording of Appellant s telephone conversation. We have assumed, without deciding, that Deputy Jenkins was not qualified to give a lay opinion regarding state of mind.

Instances one through six. During the testimony of Deputy Jenkins, Appellant objected to testimony that the wording and tone of voice used by Appellant in his telephone conversation with Penny Conner was harassing, annoying, alarming, abusive, tormenting, and embarrassing. In all but one of these instances - the State s question regarding whether the conversation was annoying - Appellant failed to state an objection until after the question posed to Deputy Jenkins had already been answered.

Generally, in order for an appellant to argue on appeal that a trial court erred by allowing a party to pose a specific question to a testifying witness or party, he must have preserved the error at trial by making a proper objection and securing a ruling on the objection. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also Tex. R. App. P. 33.1 (describing the necessary steps to preserve error in Texas courts). An objection should be made as soon as the ground for objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If a party fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived. Id.

 

To the extent the testimony in question was objectionable, such an objectionable nature was evident in the questions propounded upon the witness by the State. Appellant has made no attempt on appeal to justify his delay in objecting to the questions. Further, no legitimate reason is apparent from the record. Therefore, with the exception of Appellant s objection to the annoying question, Appellant s objections were untimely and error, if any, is waived. See id.

Regarding Deputy Jenkins s testimony that Appellant s conversation with Conner was annoying, this testimony related solely to the state of mind of Penny Conner. That Conner was annoyed by Appellant s conversation was of slight evidentiary value. In fact, it was not necessary for the State to prove that Penny Conner was annoyed. In contrast, Deputy Jenkins testified, without objection, that Appellant told Conner

[y]ou know your shit is weak. . . . I m coming after your ass. They can only keep me here so long. . . . When I get out, we re going to talk, maybe talk with my goddam fists.

These words, absent some very unusual circumstances, speak for themselves. In light of the whole of Deputy Jenkins s testimony, we cannot hold that the testimony that Penny Conner was annoyed had a substantial and injurious effect or influence in determining the jury s verdict.

Instances seven through twelve. As with instances one through six, all but one of instances seven through twelve involve an objection made after the State s question had already been answered. Again, the objectionable nature, if any, was apparent from the questions propounded. Also again, Appellant has made no attempt on appeal to justify his delay in objecting to the questions and no legitimate reason is apparent from the record. As such, error, if any, is waived. See id.

In regard to the one instance in which Appellant made a timely objection, it appears from the record that this question was never answered by the witness. Instead, after the trial court overruled Appellant s objection, counsel for the State asked a different question.3 Because the witness did not actually answer the State s question, no harmful testimony was admitted. The error counsel complains of did not occur.

 

Conclusion

Appellant has failed to preserve for review all but two alleged errors. Of the two preserved, the first does not require reversal and the second did not actually occur. We overrule Appellant s fifth issue.

Jury Charge

In his sixth issue, Appellant complains that the trial court erroneously rejected his request to submit to the jury an article 38.23(a) instruction regarding the recording of his telephone conversation. Article 38.23(a) of the Texas Code of Criminal Procedure reads as follows:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code. Crim. Proc. Ann. art 38.23(a) (Vernon 2008).

A defendant s right to the submission of jury instructions under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State, No. PD-1243-05, 2007 WL 4404270, at *3 (Tex. Crim. App. Dec. 19, 2007) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)).

The terms of the statute are mandatory, and when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly. The only question is whether under the facts of a particular case an issue has been raised by the evidence so as to require a jury instruction. Where no issue is raised by the evidence, the trial court acts properly in refusing a request to charge the jury.

Madden, 2007 WL 4404270, at *3 (quoting Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982)).

There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under Article 38 .23(a):

(1) The evidence heard by the jury must raise an issue of fact;

(2) The evidence on that fact must be affirmatively contested; and

(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.

Madden, 2007 WL 4404270, at *3-4. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. Id.,at *4. If other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. Id. In short, the disputed fact must be an essential one in deciding the lawfulness of the challenged conduct. Id.

A review of the record shows that no material factual dispute existed at the time of the trial court s refusal to submit the requested instruction to the jury. Appellant had been secretly recorded while making a telephone call to his wife. There was no evidence that either Appellant or his wife had consented to the call being recorded. However, the evidence also showed that Appellant made the call with at least one jailer in the same room and that Appellant continued to threaten Conner even after receiving a verbal warning from that jailer regarding the use of threats and profane language. These facts were not in dispute, and there was no material conflict in the evidence. Therefore, the legality of the conduct was a question of law for the trial court. See id. As such, the trial court properly denied Appellant s jury instruction request. See id.,at *9. We overrule Appellant s sixth issue.

Evidentiary Sufficiency

  In his seventh and eighth issues, Appellant claims that the evidence was legally and factually insufficient to support a conviction.

Standard of Review

 

  The Due Process Clause of the Fourteenth Amendment requires that evidence be legally sufficient to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979). Evidence is legally sufficient when an appellate court, viewing the evidence in the light most favorable to the judgment, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789). We must bear in mind that the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). The jury is entitled to draw reasonable inferences from the evidence. Dudley v. State, 205 S.W.3d 82, 86-87 (Tex. App. Tyler 2006, no pet.). Likewise, the reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41 42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

In addition to the guarantees provided by the Fourteenth Amendment, in the direct appeal of a criminal case, the courts of appeals have the statutory and constitutional authority to entertain a claim of factual insufficiency. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). In conducting a factual sufficiency review of the evidence, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The fact that we might harbor a subjective level of reasonable doubt is not enough to overturn a conviction that is founded on legally sufficient evidence. See Watson

 

, 204 S.W.3d at 417. Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. Dudley, 205 S.W.3d at 89. We cannot declare that a conflict in the evidence renders the evidence factually insufficient simply because we disagree with the jury s resolution of the conflict. See Watson, 204 S.W.3d at 417. A successful factual sufficiency challenge will result in a reversal of the conviction challenged and remand of the case for a new trial. See id. at 414.

Discussion

As charged in the sole count of the information, the State had to prove that,

on or about the 13th day of March, 2005, and before the making and filing of this information, in the County of Cherokee and the State of Texas, KEVIN WADE CONNER did then and there, with intent to harass, annoy, alarm, abuse, torment, or embarrass Penny Conner, threaten Penny Conner by telephone, in a manner reasonably likely to alarm Penny Conner, to inflict serious bodily injury on Penny Conner, a member of the defendant s family.

See Tex. Penal Code Ann. 42.07(a) (Vernon 2003).

The evidence as to Appellant s conversation with Penny Conner was uncontroverted. Therefore, the only arguably weak point in the State s evidence was Appellant s intent. However, even here, the evidence in question was strong evidence of intent.

Deputy Jenkins testified that, during the telephone call, Appellant told Penny Conner

[y]ou know your shit is weak. . . . I m coming after your ass. They can only keep me here so long. . . . When I get out, we re going to talk, maybe talk with my goddam fists.

This testimony was not controverted by any witness or piece of evidence. Further, Appellant made no attempt to impeach the credibility of Deputy Jenkins. In addition, Penny Conner testified, without objection, as to the substance of the telephone conversation. She testified that Appellant told her my ass needed to be out of town prior to him being released from jail . . . and he told me that we would talk but it would be with his fist. These facts were not controverted.

It is axiomatic that facts and circumstances attending a given act or omission may reveal intent. Stanfield v. State, 718 S.W.2d 734, 738 (Tex. Crim. App. 1986). A fact finder may infer intent from the conduct and circumstances surrounding the case. See Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985). Here, the uncontroverted testimony regarding the substance of Appellant s telephone statements made to Penny Conner were strong evidence of his culpable mental state. Nothing in the record supports that Appellant meant to relay any message other than what would be understood from the plain meaning of the statements.

 

The jury determined that Appellant had the necessary intent to commit the crime of telephone harassment as set forth in the information. Based upon our review of the record and our application of the appropriate standards of review, we hold that the evidence was both legally and factually sufficient for a jury to have found that Appellant committed the charged offense of telephone harassment. We overrule Appellant s seventh and eighth issues.

Assessment of Fine

In Appellant s ninth issue, he complains that the trial court probated only a portion of the fine assessed against Appellant. Appellant argues that the trial court was required by law to probate Appellant s entire fine because of the jury s recommendation of community supervision. We disagree.

Community supervision, also known as probation, is not part of the sentence, but instead is an arrangement in lieu of the sentence. Spath v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). A jury that imposes confinement as punishment for an offense may recommend community supervision. Tex. Code. Crim. Proc. Ann. art. 42.12 4(a) (Vernon Supp. 2007). The trial court must then suspend the imposition of the sentence and place the defendant on community supervision. Id. However, the trial court has the discretion to determine the conditions of community supervision. Tex. Code. Crim. Proc. Ann. art. 42.12 11(a) (Vernon Supp. 2007). Pursuant to this authority, the trial court may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. Id. The provisions of community supervision may include a requirement that the defendant pay his fine, if one be assessed, and court costs whether a fine be assessed or not, in one or several sums. Tex. Code. Crim. Proc. Ann. art. 42.12 11(a)(8) (Vernon Supp. 2007).

 

The trial court imposed, as a condition of community supervision, that Appellant pay a $500 fine. The jury had assessed as punishment a fine of $1,000. Although the jury recommended community supervision, the trial court was within its discretion to include, as a condition of that community supervision, that Appellant pay all of the fine assessed by the jury. Because the permissible conditions of community supervision include a provision for payment of a fine if one was assessed, the trial court s condition that Appellant pay a $500 fine was not improper. We overrule Appellant s ninth issue.

Disposition

We affirm the trial court s judgment.

BRIAN HOYLE

Justice

Opinion delivered February 29, 2008.

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

(DO NOT PUBLISH)

 

1 Appellant had previously suspected that Penny Conner was engaged in an affair. By the time of his alleged discovery of proof regarding the affair, Appellant and Conner had been separated for approximately three years. The two subsequently divorced.

2 The jury requested to listen to the recording during their deliberations and that request was granted by the trial court. However, the fact that the jury sought to hear this recording again does not, standing alone, show that Appellant was harmed.

3 The properly objected to question related to whether the conversation was abusive. The later question related to whether the conversation was intended to torment.