Opinion issued April 8, 2010.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00991-CR
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Artimus Lorenzo Fegans, Appellant
V.
The State of Texas, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1169987
MEMORANDUM OPINION
A jury found appellant, Artimus Lorenzo Fegans, guilty of aggravated robbery and assessed punishment at 40 years’ confinement. In three related points of error, appellant contends that the trial court erred by (1) refusing to permit evidence at the punishment phase of trial that, since the date of trial, appellant had become paralyzed and, (2) allowing the prosecutor to characterize appellant as dangerous, despite knowing that he was confined to a wheelchair. We affirm.
BACKGROUND
On August 4, 2007, appellant and three other men entered a Sprint store, brandishing guns and demanding money from the store’s employees. After taking money from the registers and a safe in the back room, the men fled. The robbery was captured on video surveillance cameras. Approximately three weeks later, appellant was identified in a photospread and was arrested.
After the guilt/innocence phase of trial, the jury found appellant guilty of aggravated robbery and proceeded to the punishment phase. At punishment, appellant stipulated that he had previously been convicted of aggravated robbery, aggravated kidnapping, and possession of marihuana. A police officer also testified that he had previously stopped appellant for a traffic offense and found that appellant was in illegal possession of a handgun and marihuana.
At punishment, counsel for appellant advised that court that he wished to present evidence that appellant had become permanently paralyzed while in the Harris County Jail. Counsel argued that the evidence was relevant (1) to the jury’s consideration of appellant’s possible future dangerousness, (2) to the increased costs to taxpayers to support an extended imprisonment of a paralyzed inmate, and (3) to appellant’s plea for leniency. The record also indicates that appellant intended to offer not only the fact of his current paralysis, but also that the paralysis was permanent and was the result of negligence by the County or the Hospital District while appellant was in jail.[1] Counsel stated that he intended to present this evidence through the testimony of appellant’s “civil lawyer who has far more personal knowledge of the disability[,] how it came about, how it got exacerbated, et cetera, [who] will testify from firsthand knowledge to those matters, which are arguably admissible[.]”
After considering counsel’s proffered evidence, the trial court found the evidence irrelevant as to punishment and excluded it.
RELEVANCY
In his first point of error, appellant contends that the trial court abused its discretion by not allowing him to present evidence at punishment that, since the date of the offense, appellant had become a paraplegic and was confined to a wheelchair.
Standard of Review and Applicable Law
We review a trial court’s decision to admit or to exclude evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). When the trial court’s evidentiary ruling is within the “zone of reasonable disagreement,” there is no abuse of discretion, and the reviewing court must uphold the trial court’s ruling. Id. All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402. Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. Tex. R. Evid 401.
In all criminal cases, after a finding of guilt by either a judge or a jury, both parties may offer any evidence relevant to sentencing. Rivera v. State, 123 S.W.3d 21, 30 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). This evidence may include the defendant’s prior criminal record, character testimony, reputation testimony, or evidence of extraneous crimes or bad acts that the defendant has been shown, beyond a reasonable doubt, to have committed. Id. The trial court is required to afford the defendant the opportunity to present evidence, including character testimony and evidence of mental-health problems and other life-challenges, in mitigation of punishment. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon 2003). The determination of what is “relevant” in regard to punishment, under article 37.07 section 3(a), “should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case.” Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000).
Application of Law to Facts
The State argues that the trial court did not abuse its discretion in refusing to admit appellant’s proffered testimony because some was arguably relevant, while some was not. Specifically, the State argues that “[a]lthough [appellant’s] confinement to a wheelchair might be relevant to sentencing, his claims that Harris County Employees cause the paralysis, was not. His civil claims against the county had no relevance to his sentencing for aggravated robbery.” We agree.
Appellant did not make a bill of exception.[2] He argued to the trial court that he wanted to call his civil attorney to testify “to the matter of [appellant becoming disabled, i.e., permanently paralyzed while he was an inmate in the Harris County Jail.” The trial court clarified that appellant wished to offer evidence of his “claims against Harris County” and “the extent of [appellant’s] injuries, and basically how they came about through the negligence of the hospital district or misdiagnosis[.]”
When a trial court is presented with a proffer of evidence containing both admissible and inadmissible statements and the proponent of the evidence fails to segregate and specifically to offer the admissible statements, the trial court may properly exclude all of the statements. Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002). In Jones v. State, 843 S.W.2d 487, 492-493 (Tex. Crim. App. 1992), the court explained:
Inadmissible hearsay testimony does not become admissible simply because it is contained within an admissible document or transcript. The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection . . . . When evidence which is partially admissible and partially inadmissible is excluded, a party may not complain upon appeal unless the admissible evidence was specifically offered.” (footnotes and some punctuation omitted).
Here, the record demonstrates that appellant failed to sort out the admissible portions of the evidence that he wished to offer from the inadmissible portions. Part of appellant’s evidence concerned his civil claims against Harris County for causing his injuries. While the fact of appellant’s injury may have been relevant to the issue of his future dangerousness, the cause of his injury would not have been relevant to that issue or any other issue at punishment. See Tex. R. Evid. 401 (defining relevant evidence as that which makes “the existence of any fact that is of consequence to the determination of the action more or less probable”). Similarly, the trial court could have concluded that appellant’s civil trial attorney was not qualified to testify as an expert on appellant’s future prognosis. See Tex. R. Evid. 702 (requiring witness qualified as expert by knowledge, skill, experience, training, or education to testify as to an opinion).[3] “It is not incumbent upon the trial court, where evidence offered is relevant or admissible in part only, to separate the good from the bad but it may reject the evidence as a whole.” Schulz v. State, 446 S.W.2d 872, 874 (Tex. Crim. App. 1969). Because appellant did not separate the admissible evidence from the inadmissible evidence, the trial court did not err in excluding all of it.
We overrule appellant’s first point of error.
JURY ARGUMENT
In points of error two and three, appellant contends that the trial court erred by permitting the prosecutor to argue that appellant was dangerous and likely to commit future violent crimes despite knowing that appellant was paralyzed and confined to a wheelchair.
In the past, the Court of Criminal Appeals held that one must object to preserve error regarding prosecutorial argument, except when “the prosecutor’s argument is so prejudicial that an instruction to disregard will not cure the harm.” Briddle v. State, 742, S.W.2d 379, 389 (Tex. Crim. App. 1987). However, in Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), the court overruled the line of cases recognizing this exception and held that “[a] defendant’s failure to object to a jury argument or a defendant’s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal.” Appellant did not object at trial about the argument of which he now complains on appeal, and thus the issue is waived.
We overrule issues two and three.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
[1] In clarifying what evidence appellant wished to offer, the trial court stated that it was his understanding that appellant wished to elicit evidence of the following:
Just so that I’m clear, we had—just so the record is clear, we had conversations prior to this off the record sort of a proffer of what you intended to offer about Mr. Fegans, I guess at this point, alleged claims against the [sic] Harris County either being the jail or the hospital district, whoever all is listed in a pending [civil] lawsuit as I understand it. And the proffer called for talking about the extent of his injuries, and basically how they came about through the negligence of the hospital district or misdiagnosis and so forth. Again, that’s a general description, but I believe that’s the tenor of what was being offered.
[2] We do not consider the affidavits filed in connection with appellant’s motion for new trial in connection with the trial court’s ruling on the admissibility of the evidence because the affidavits were not before the trial court when it made its ruling. See Estate of Miller, 243, S.W.3d 831, 838 (Tex. App.—Dallas 2008, no pet.) (refusing to consider affidavits attached to motion for new trial in reviewing admissibility of evidence at trial).
[3] Appellant also argues that the trial court instructed his sister “not to say anything about paralysis, medical condition, anything like that.” The fact of appellant’s paralysis is not relevant to show future dangerousness unless tied to evidence of appellant’s future prognosis. We have already held that the trial court could have concluded that appellant’s civil attorney was not qualified to provide such testimony. Likewise, the trial court could have concluded that appellant’s sister was also not qualified to provide such testimony.