COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-013-CR
KATHRYN ANN VANDERBURGH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one point, Appellant Kathryn Ann Vanderburgh asserts that the trial
court erred by taking into account evidence of a homicide while determining her
sentence for a DWI conviction. We affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
Vanderburgh was indicted for the offense of driving while
intoxicated—felony repetition, to which she pleaded guilty without a plea
bargain. The trial judge acknowledged having read the presentence
investigation report, and Sergeant Chris Reed and Corporal Eric Chambless of
the Haltom City Police Department and Vanderburgh testified at the punishment
trial.
Sergeant Reed testified that in March 2007, he responded to two 911
calls concerning a reported drunk driver at a local fast-food restaurant. Upon
his arrival, Sergeant Reed observed Vanderburgh erratically driving her vehicle
around the restaurant and onto the sidewalk, her vehicle straddling the narrow
curb that divided the drive-through lane from the adjoining property.
Specifically, he testified that she was driving like she was in one of the toy cars
at a Six Flags amusement park, “[the one] that you ride but you don’t really
have to steer because they just bounce along on a track.” Sergeant Reed
conducted a DWI investigation and described Vanderburgh as barely able to
stand and “extremely intoxicated.” He testified that it was apparent that she
had defecated in her pants.
At one point during the stop, Vanderburgh stated to Sergeant Reed that
she needed to go home because she thought her roommate was dead.
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Sergeant Reed asked her why she thought that, and she replied, “Well, I just
think that she is.” When Sergeant Reed asked her if someone should be sent
to the apartment to assist her roommate, she replied, “No.” Sergeant Reed
testified that he assumed these statements were just the rambling of a highly
intoxicated person. He also noted that Vanderburgh had light burns about her
face 2 and did not know how she was able to operate her car without hitting
something or someone because of her condition. Instead of taking Vanderburgh
into custody, he released her to an ambulance.
The next day, Sergeant Reed was dispatched to assist in a death
investigation at Vanderburgh’s apartment. He testified that Vanderburgh had
asked a neighbor to check on her roommate’s condition, and the neighbor
discovered that she was dead, with a gunshot wound to the chest; the police
were called. Sergeant Reed spoke with Vanderburgh again, who appeared to
be in the same intoxicated condition she had been in the night before. He also
noticed that Vanderburgh was still wearing the same pants from the night
before. On cross-examination, Sergeant Reed testified that Vanderburgh had
been “no billed” by a Tarrant County grand jury for any charges resulting from
the death of her roommate.
2
… Vanderburgh testified that the burns on her face occurred when she
lit a cigarette and “it just kind of blew up in [her] face.”
3
Corporal Chambless testified that it was apparent that Vanderburgh’s
roommate died from a single gunshot wound to the chest. He found the body
on the floor, next to the bed in the single-bedroom efficiency apartment. He
interviewed Vanderburgh at the police department and stated that she told him
that after arriving at the hospital the previous evening, she removed her IV,
which accounted for some blood on her clothing, left the hospital, took a taxi,
and went home.3 At some point, she went out, bought more wine, and
continued drinking. Corporal Chambless testified that he understood that
Vanderburgh had gone to a neighbor to find out if her roommate was dead and
then the police were called.
Corporal Chambless confirmed that Vanderburgh was “no billed” from any
offense surrounding the death of her roommate. On cross-examination, he
testified that, in his opinion, the grand jury was incorrect in deciding to “no bill”
Vanderburgh for her roommate’s homicide, that he did not believe
Vanderburgh’s version of events surrounding the death of her roommate, and
that the case was now closed and no longer under investigation.
Vanderburgh described herself as a fifty-seven year old alcoholic—a binge
drinker who had battled alcohol dependency for years. She testified that she
3
… Vanderburgh testified that she was drunk during the interview with
Corporal Chambless and did not remember the entire interview.
4
binge-drank as a result of pain from a broken shoulder but that she “suppose[d]
there’s no excuse” to binge drink. 4 At the time of her arrest, she weighed
under 100 pounds and her blood alcohol content (“BAC”) was .30; she agreed
that at a BAC level of .40, she would have been dead.
Vanderburgh testified that she had five prior DWI convictions, three in
Texas and two in California, the first in 1993, and that her numerous attempts
at completing alcohol abuse rehabilitation programs in various places over a
period of years had not been successful. She took “Antabuse” to try to prevent
her drinking from 1994 to 2002, as a condition set by her then-husband to
sustain their marriage. She spent twenty-eight days at a rehab center in the
Hurst-Euless-Bedford area in 1993, participated in the EXCEL alcohol treatment
program at Timber Lawn in Dallas for a few months in 1994, went to rehab in
Pennsylvania for several weeks in October 2003, and spent sixteen months in
New Jersey in rehab. She had also been sent to a mental hospital in
Massachusetts at one point because she had threatened to commit suicide.
She received counseling for her alcohol problem while on probation for DWI in
2005 and 2007.
4
… She also testified about a number of other physical problems that she
had, including osteoporosis, pleurisy, and serious eye problems.
5
Vanderburgh told the trial judge that she did not see a solution to her
alcoholism and admitted that there was no question but that she was guilty as
charged in this case. On cross-examination, Vanderburgh also admitted to
being on a Tarrant County DWI probation at the time she committed the present
DWI offense in Parker County, denied having any memory about how her
roommate got shot, confirmed her actions surrounding her roommate’s death
as related by the State’s witnesses, and stated that at the time, she was “so
drunk [she] didn’t even know [the roommate] was dead.”
Vanderburgh asked for a probated sentence with extensive inpatient
alcohol treatment. The State asked for a sentence of between eight to ten
years. The trial judge stated that based on Vanderburgh’s numerous failed
attempts to treat her alcohol problem, he had to protect the community by
keeping her off the highway. He then sentenced Vanderburgh to eight years’
confinement. This appeal followed.
III. Punishment Evidence
Vanderburgh posits her sole issue as follows: “In this case the Appellant
is not objecting to the sentence imposed, which is within the statutory limits
for the offense; but rather is objecting to the manner in which it was arrived
at,” referring to the evidence admitted concerning her roommate’s death. The
State responds that Vanderburgh failed to preserve her issue for review because
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she failed to object at trial and that Vanderburgh waived any error because the
evidence she complains of now was also admitted in various places without
objection.
A. Standard of Review
While our review of a trial court’s admission or exclusion of evidence is
under the abuse of discretion standard, including extraneous offense evidence
during the punishment phase of a trial, Mitchell v. State, 931 S.W.2d 950, 953
(Tex. Crim. App. 1996); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim.
App. 1993), a complaining party must preserve a complaint for our review, that
is, they must have presented to the trial court a timely request, objection, or
motion that states the specific grounds for the desired ruling if they are not
apparent from the context of the request, objection, or motion. Tex. R. App.
P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Further, the trial court
must have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court’s
refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334,
341 (Tex. Crim. App. 2004).
Additionally, an objection must be made as soon as the basis for the
objection becomes apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942
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S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk
v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). And to preserve error,
a party must continue to object each time the objectionable evidence is offered.
Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528
U.S. 1026 (1999); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim.
App. 1991). A trial court’s erroneous admission of evidence will not require
reversal when other such evidence was received without objection, either
before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998); Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim.
App. 1990), cert. denied, 501 U.S. 1259 (1991), overruled on other grounds
by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). This rule
applies whether the other evidence was introduced by the defendant or the
State. Leday, 983 S.W.2d at 718.
B. Trial Testimony
The following evidence was admitted without objection during the
punishment phase of Vanderburgh’s trial.
Cross Examination (Sergeant Reed)
Q. Officer, is this the same situation on March 3 of 2007, that Ms.
Vanderburgh was no billed for a murder charge?
A. Yes, that’s correct.
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....
Direct Examination (Corporal Chambless)
Q. Okay. Did you respond to the death investigation [Sergeant
Reed] was taking about?
A. I did.
Q. All right. And when you got out there, did you meet Ms.
Vanderburgh?
A. I did.
Q. And did you get a chance to go through the crime scene?
A. I did.
....
Q. . . . . [W]ho was the deceased person?
....
A. I believe her name was Becky Mooney.
Q. All right. We’ll just call her Becky if that’s all right. Where was
Becky when you found her?
A. On the floor next to the bed.
Q. In the one and only bedroom?
A. Yes.
Q. All right. And did you find that she had been shot?
A. Yes.
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....
Q. . . . . Where was she shot on her person?
A. Just above her left breast.
Q. Okay. And where—what was the location where she had been
shot, if you could tell?
A. On the bed.
Q. All right. Did you have a chance to speak with Ms.
Vanderburgh about the death of her roommate?
A. I did.
....
Direct Examination (Corporal Chambless)
Q. Corporal Chambless, just so that the time line’s clear for the
court, from what you understand, her roommate is shot, however
that happens, and then the defendant Ms. Vanderburgh goes out,
is arrested for DWI and then sent to the hospital instead of being
taken to jail, and then she gets out, comes back home, and the
neighbor gets contacted, I guess, by the defendant to find out if
her roommate’s dead, according to the defendant, and then you all
come out there; is that pretty much it?
A. Yes.
Q. Okay. And as counsel asked Sergeant Reed, that case actually
was no billed by the Tarrant County grand jury?
A. Yes.
....
Cross Examination (Corporal Chambless)
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Q. Is there any new evidence that’s come to light since March of
‘07 that could help us determine if she did commit a murder or not?
A. That case has been closed and I’m no longer investigating it.
....
Cross Examination (Vanderburgh)
Q. And whatever happened, at some point you got intoxicated,
and at some point you’re holding a gun, and somehow it goes off
and she gets shot, right?
A. I don’t really know what happened. . . . And I don’t know
what happened. And maybe I—I don’t know. But if I’m
responsible, by golly, I will—I would do anything. Anything. I
take responsibility for what I do. And it’s—
Q. Let me ask you this, regardless—regardless of whether you
shot her, she shot herself, whatever happened, when you left your
apartment there, okay, and you went out, you knew you were
drunk, right?
A. Yes.
....
Q. . . . . Wouldn’t you agree that [her conduct related to the roommate’s
death] should have been a wake-up call, something that made you stop
drinking, sit up and go, “Oh my God, I’ve got to stop doing this[?]” . . .
A. I don’t know, sir. It was a horrible thing. I’ve never been
around anybody who was dead. And I was so drunk I didn’t even
know she was dead. And to think that I was in the apartment with
someone that was dead is beyond my imagination.
Q. Okay. But you actually left her there, as you thought she was
dead, and went out and got a DWI, right?
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A. All of that is not clear to me. I know it was—that was heard
today, but it was not clear to me.
Q. Okay. Would you disbelieve the officer if he said that he—that
you told him that you had a friend that you left home and thought
she was dying or you remember dying?
A I think he said that I thought she was dead. And I don’t know
why I would say that.
Q. But in fact it was true.
A. Yes, it was true.
....
Q. Do you know how long it was after you got back there to the
apartment and started drinking again that you finally went up and
got your neighbor to find out if Becky had passed away?
A. Those are not the details. As soon as I got back, I started
drinking again, I believe. And uh—I don’t know exactly what time
it was the next afternoon. And there was a knock on the door.
And I asked the woman to check on her. I didn’t go get the
neighbor. I asked her to check on her. And then I asked her to call
the police because I didn’t have a telephone.
Q. So if she didn’t come downstairs and knock on your door,
there’s no telling how long it would have been before you notified
somebody that your roommate was laying there in your apartment
dead.
A. That’s possible. I don’t know.
C. Analysis
It is readily apparent that the record is replete with evidence of
Vanderburgh’s roommate’s death, its investigation, and her no-bill from the
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grand jury and that her trial counsel made no objection to any of it. Therefore,
Vanderburgh failed to preserve her issue for review. We overrule her sole issue.
IV. Conclusion
Having overruled her sole issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 18, 2009
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Kathryn Ann Vanderburgh v. State
Combined Opinion