AT AUSTIN
NO. 3-92-083-CR
DAVID ALAN LINVILLE,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 40,794, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING
Appellant was tried under an indictment charging him with the offense of attempted murder. See Tex. Penal Code Ann. § 15.01 (Supp. 1992). After a jury found him guilty of the lesser included offense of aggravated assault, Tex. Penal Code Ann. § 22.02 (1989), the court assessed his punishment, enhanced by a prior felony conviction, at fifteen years confinement. In a single point of error, appellant asserts the trial court erred in admitting, over his objection, the details of his prior conviction for the felony offense of driving while intoxicated. We overrule appellant's point of error and affirm the judgment of the trial court.
An evaluation of appellant's point of error requires a review of the evidence. Appellant and Lily Jones had been living with Leonard Sanders in his home in Killeen for about five weeks prior to the time in question. When Sanders returned home during the late night hours of September 7, 1991, he found his house in a "mess," a chair, "radio and whatnot" were broken. Upon finding Jones on a couch, Sanders related that he saw something "I ain't ever seen before. She was beat up severely . . . she just freaked me out when she picked up her head." Appellant was on another couch asleep, with a rolled up chain, weighing "a couple of pounds" underneath his hand.
Jones testified that she and appellant had been drinking and arguing prior to the altercation, a course of conduct that had occurred on other occasions during their relationship. Appellant had a "violent" temper when he was drunk. Jones related that appellant hit her in the face with his fist "about 15, 20 times," threw her to the floor, kicked her in the ribs, pulled her by the hair and threw her through the air into a chair. When appellant stopped the attack to get another drink, Jones attempted to exit the house. Before she could leave, appellant hit her on the head with a chain, grabbed her by the hair and began hitting her "all over my body" with the chain wrapped around his fist. Appellant put the chain around her neck and threatened to kill her. After throwing Jones to the floor and kicking her, appellant "straddled my body . . . jerked my head to the right as hard as he could," walked off, and "laid down on the bed and passed out." Jones testified she received a broken nose, two broken teeth, a broken toe, permanent loss of the use of a little finger, loss of ability to see out of one eye for a few days and numerous cuts and bruises as a result of the attack that lasted two hours.
Appellant testified he was an alcoholic, had undergone treatment for the problem and was on parole until 1993 resulting from a five-year term of confinement for a felony D.W.I. conviction. Appellant did not remember how many times he hit Jones with his fist, but denied striking her with a chain. Appellant suggested that many of the injuries Jones sustained resulted from their falling over a coffee table and her kicking at him and hitting the bed. He did not threaten to kill Jones at any time during the fight that lasted for "maybe two minutes." Appellant described his condition as "drunk."
Officer Bruno Matarozzo of the Killeen Police Department testified that he was contacted by a counselor at the "Families in Crisis Center" to see Jones. Jones was reluctant to identify her attacker for fear the police would be unable to protect her. In describing the extent of Jones' injuries, Matarozzo stated, "[I]n routine police work . . . where I deal mainly with domestic violence crimes she was the worst I had ever seen."
Appellant's point of error is directed to testimony elicited from him by the prosecutor over his objection relative to prior D.W.I. convictions. During cross-examination of appellant by the prosecutor, the following occurred:
Q: Now, this last time you went to court when you got sent to the penitentiary you committed that offense right over there in front of Luby's, in front of the Killeen Mall when you flipped your pickup. Do you recall all that?
A: Yes, sir.
MR. HARRIS [defense counsel]: Object, Your Honor, to the relevance of this. We've already proven the prior convictions. The facts I think are not in issue. We're not trying that case. We're trying the case of September the 7th.
THE COURT: Overruled.
* * *
Q: You had a .42 blood, blood alcohol test that you -- in that case. A .42 does that not indicate to you that if you can be driving a truck on the street and be four times the level of legal intoxication that you could be the very person that Lily has described to this jury that don't have a clue of how mean they are and what they've done; is that true? Are you that kind of person?
A: I don't know what you're getting at.
Q: You can drive a truck with a .42 blood alcohol that's what you had in this last DWI case when I was your prosecutor, didn't you.
A: Yes, sir. That's what they said.
Q: Well, you certainly didn't want to go to trial in there and contest that, did you?
[Defense counsel]: Your Honor, I do object to any question about how we arrived at the judgment here.
THE COURT: I believe we've gone far enough, Mr. Carroll [Prosecutor].
Q: You pled guilty in that case rather than ask for a jury trial, didn't you?
A: I didn't have the money to pay for no jury trial.
Q: You think you have to have money to tell this judge you want a jury trial?
[Defense counsel]: Object, I would like a hearing outside the presence of the jury. Now we're getting so far afield we're talking about prior attorney-client relationships.
THE COURT: I'll overrule the objection. Let's move on please.
Neither the State nor the defendant may introduce into evidence the details of a prior conviction. Hodge v. State, 631 S.W.2d 754, 759 (Tex. Crim. App. 1982). Contrary to the State's argument that the appellant's objections were not specific enough to preserve error, we find that the ground relied on was sufficiently clear in its context to fairly apprise the court of his objection. See Tex. R. Crim. Evid. Ann. 103 (Pamph. 1992); Lankston v. State, 827 S.W.2d 907, 911 (Tex. Crim. App. 1992).
We must next determine whether the error was such as to require reversal. Reversal is mandated unless the reviewing court "determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment." Tex. R. App. P. Ann. 81(b)(2) (Pamph. 1992). In Harris v. State, 790 S.W.2d 568, 585-88 (Tex. Crim. App. 1990), the court noted that while Rule 81(b)(2) mandates that the reviewing court focus on whether the error contributed to the conviction or punishment, it must determine whether it might possibly have prejudiced the juror's decision-making process.
The complained-of evidence relates to details of appellant's prior D.W.I. convictions. The thrust of appellant's defense, as evidenced by defense counsel's argument, was that appellant did not intend to kill Lily Jones. The jury apparently agreed that this was a valid defense, finding appellant guilty of the lesser-included offense of aggravated assault. Appellant testified that his problems were the result of being an alcoholic. His former wife, Judith Linville, a defense witness, testified that appellant's drinking problem was instrumental in their divorce. In his argument, defense counsel noted that appellant had been convicted "at least six and maybe eight times" of driving while intoxicated. Defense counsel characterized appellant as a "drunk . . not necessarily a happy drunk . . . . In fact he may be a dangerous drunk." Defense counsel placed emphasis on that portion of the court's charge defining intoxication to negate appellant's intent to kill. The testimony about which appellant complains appears to support his defense that he was not capable of possessing the requisite mental intent to kill because of his intoxication. While appellant contended that he was guilty of nothing more than the offense of assault, the severity of the injuries described by Jones is supported by the testimony of Sanders and Matarozzo, as well as photographs in evidence depicting her injuries. We have no difficulty in concluding that the complained-of testimony was harmless beyond a reasonable doubt in that it made no contribution to the conviction, nor did it prejudice the jurors in the decision-making process.
At the punishment stage of the trial, appellant's brother and sister gave additional testimony relative to his drinking problem. While a copy of the P.S.I. (presentence investigation) is not in the record, we note that the prosecutor argued without objection that the P.S.I. reflected that appellant told the presentence people that he used the chain on Jones. We conclude beyond a reasonable doubt that the complained-of evidence made no contribution to the punishment nor did it prejudice the court's decision-making process. Moreover, the punishment hearing having been before the court, it is presumed that the trial court disregarded any inadmissible evidence. See Miffleton v. State, 777 S.W.2d 76, 82 (Tex. Crim. App. 1989). Appellant's point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
[Before Justices Powers, Jones and Davis*]
Affirmed
Filed: August 12, 1992
[Do Not Publish]
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988).