Opinion
No. 05-07-00509-CR
Opinion issued April 15, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 054649-15.
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
A jury found Bruce Darnell Dotson II guilty of the aggravated robbery of Verline Sample, a first degree felony, and sentenced him to twenty-one years' confinement. See Tex. Penal Code Ann. §§ 29.03 (a)(3)(A), (b) (Vernon 2003). In a single issue, appellant challenges the admission of certain testimony during the punishment phase of the trial. Concluding appellant's issue is without merit, we affirm the trial court's judgment. During the punishment phase of trial, Sample, an eighty-year-old man, was asked about his military service. He described his army combat service on Okinawa during World War II. Sample was asked if he received an award for that service. Appellant's counsel said, "Judge, I will object to the relevance of this." The State replied it was admissible victim character evidence. Counsel stated it was "self serving." The court stated, "I will let you ask him a little bit." The State then asked Sample again whether he received any awards from the army, and he said he received "[t]he best from the combat infantry badge." In response to another question, Sample testified he served twenty-one years in the military. The State next asked Sample about the impact of the robbery on his life. Sample replied, "I really believe that it probably knocked ten years of my life out of the way I had been treated and the injuries that I got." The State referred to "[getting] into this" previously in the trial and asked Sample if he had "got around good before your hip was fractured" and if he used a cane before the incident. Sample replied, "No cane, no nothing. I did garden work, lawn work. I went fishing, hunting and I had a decent life after military service." The State passed Sample, appellant had no questions, and Sample was excused. Article 37.07, section 3(a) of the code of criminal procedure provides, in relevant part, that "evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . the circumstances of the offense for which he is being tried,. . . ." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2007) (emphasis added). See Haley v. State 173 S.W.3d 510, 513 (Tex.Crim.App. 2005). Appellant argues Sample's testimony about his military award was victim character evidence that was not related to the circumstances of the offense and not relevant to punishment under article 37.07, section 3(a). Admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy. Ellison v. State, 201 S.W.3d 714, 719 (Tex.Crim.App. 2006). Determining what is relevant should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case. Id. Although "relevant" is not defined in the code of criminal procedure, rule of evidence 401 is helpful in determining relevance under article 37.07, section 3(a). See id. at 718; Tex. R. Evid. 401 (defining "relevant evidence" as evidence having any tendency to make existence of any fact that is of consequence to determination of action more probable or less probable than it would be without evidence). There are "no distinct `facts . . . of consequence' that proffered evidence can be said to make more or less likely to exist." Ellison, 201 S.W.3d at 718-19 (citation omitted). The trial court has broad discretion in determining the admissibility of evidence, and its ruling should not be reversed on appeal absent a clear abuse of discretion. Richards v. State, 932 S.W.2d 213, 215 (Tex.App.-El Paso 1996, pet. ref'd). Victim character evidence is designed to give the jury "a quick glimpse of the life" of the victim and show the victim's "uniqueness as an individual human being." Salazar v. State, 90 S.W.3d 330, 335 (Tex.Crim.App. 2002) (citing Payne v. Tennessee, 501 U.S. 808, 823 (1991)). In general, victim character evidence may be admissible at the punishment phase when the evidence bears on the defendant's personal responsibility and moral culpability. Id.; Mosley v. State, 983 S.W.2d 249, 261-62 (Tex.Crim.App. 1998). Sample's testimony about his physical capabilities before the incident-not using a cane, doing yard work, hunting-is victim character evidence because it shows his "uniqueness as a human being" and is a "quick glimpse" into his life. See Salazar, 90 S.W.3d at 335. Such testimony also clearly relates to the circumstances of the offense, in that it provides context to Sample's testimony as to how the robbery affected his life. Sample's testimony about the length of his military service is also victim character evidence. See id. That evidence can be considered to be in the zone of relevancy to the extent it provides the jury a basis for comparing Sample's physical activity before the robbery to that of a non-military retiree. Thus, the trial court did not abuse its discretion in admitting the above testimony. Evidence that Sample received a military award is also victim character evidence. See id. However, ordinarily such evidence does not relate to the "circumstances of the offense" or appellant's personal responsibility and moral culpability, and that is the case here. Thus, we agree that evidence of Sample's military award was not relevant to the jury's decision about the appropriate sentence in this particular case. See id.; Mosley, 983 S.W.2d at 261-62. Thus, the trial court abused its discretion in allowing such evidence. We next consider whether admission of this testimony was harmless. Rule of appellate procedure 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365. The evidence concerning Sample's military award took up less than one page of about 100 pages of testimony in the punishment phase. In closing argument, the State made two references to Sample having "served his country." The jury also heard testimony about Sample's injuries and observed his physical condition in the guilt/innocence phase. And the jury heard testimony about appellant's background, including his adjudication for aggravated sexual assault of a child, probation violation, and disciplinary proceedings against him for his bad behavior at boot camp and during a Texas Youth Council commitment. Considering this record, we have a fair assurance that the evidence in question did not influence the jury or had but slight effect. See id. Accordingly, we conclude any error in admitting this evidence was harmless. Appellant also argues that the admissibility of victim character evidence is limited to the context of the mitigation special issue in capital murder trials. See, e.g., Mosley, 983 S.W.2d at 249 (capital murder). However, because appellant did not make this complaint in the trial court, he has failed to preserve it for review on appeal. See Tex. R. App. P. 33.1(a) (requiring complaining party make timely, specific request, objection, or motion; trial judge either ruled on request, objection, or motion, or refused to rule and complaining party objected to ruling); Haley, 173 S.W.3d at 516. In addition, the complaint on appeal must comport with the objection at trial. See Delapaz v. State, 228 S.W.3d 183, 195 (Tex.App.-Dallas 2007, pet. ref'd). Even if appellant had preserved this complaint for review, we would reject it because the court of criminal appeals considered victim impact evidence in Haley, which concerned conviction and punishment for cocaine possession. See Haley, 173 S.W.3d at 511. See also Salazar, 90 S.W.3d at 335 n. 5 (stating Payne's logic applies to victim evidence in non-capital cases); Brooks v. State, 961 S.W.2d 396, 400-01 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (concluding victim impact evidence not relevant only because of special issues jury answers under death penalty procedure). Having determined that any error in admitting evidence of Sample's military service at the punishment phase was harmless, we resolve appellant's issue against him. We affirm the trial court's judgment.