In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00029-CR ______________________________
JAMES GALEN SHAW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 12,560
Before Grant, Ross, and Cornelius,* JJ. Opinion by Justice Ross *William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N
The jury convicted James Shaw for the murder of Carlotta Nealy and assessed punishment at fifty years' imprisonment. Shaw brings a single point of error on appeal. He contends the trial court erred in admitting extraneous offense testimony at the guilt/innocence phase of his trial.
Nealy's death occurred sometime between March 9 and March 12, 2000. Nealy was last seen on March 9, and her body was discovered March 12. On the same day Nealy's body was found, law enforcement officers arrested Shaw while he was driving Nealy's truck. Blood was visible on Shaw's clothing at the time of his arrest. Shaw did not contest the fact that he knew Nealy or that the two had an argument shortly before Nealy's death.
An expert testified concerning the physical evidence. That evidence showed Nealy's blood on one of Shaw's shoes and on the clothing he was wearing at the time of his arrest. The bottom sole of one of his shoes was consistent with a shoe print found at the scene. Further, there was a broken piece of marble found at the scene with both Nealy's and Shaw's blood on it.
Shaw's cellmate, Joseph Caster, testified Shaw told him he killed Nealy.
Although Shaw did not testify at trial, he claimed to the investigating officers that he had a loss of memory during the time of Nealy's death, and he repeatedly asserted to them that he recalled nothing concerning her death.
Shaw contends the trial court committed reversible error by allowing the introduction of extraneous offenses into evidence. Shaw contends the cumulative effect of this evidence portrayed him as being a criminal generally, as being a drug user who committed random thefts, and as one displaying an irrational and volatile temper. Shaw specifically complains about the introduction of three extraneous offenses: (1) theft of a chain saw belonging to his father that was found in Nealy's truck, (2) burglary of a church, and (3) use of illegal drugs. Shaw also complains of the testimony of Caster regarding Shaw's disposition and temper.
At the beginning of trial, Shaw filed a motion in limine to exclude the introduction of the extraneous offenses. The trial court overruled the motion. At trial, Shaw failed to object to the evidence regarding the chain saw and to Caster's testimony. He therefore waived his right to complain about the admission of this evidence on appeal. Tex. R. App. P. 33.1; Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002); Ladd v. State, 3 S.W.3d 547, 569 (Tex. Crim. App. 1999).
Concerning the burglary of the Glenwood Baptist Church, the evidence showed that, when the officers arrested Shaw, they discovered a radio in Nealy's truck that had been stolen from the church. The radio belonged to Shaw's grandmother, a member of the church. Shaw complains the State went beyond merely proving the radio found in the truck came from the church. He complains the State introduced details of the commission of the burglary, including a photograph of a broken window believed to be the point of entry. Shaw contends that this evidence was not relevant to the murder for which he was on trial and that the potential for prejudice wholly outweighed any probative value, even if the evidence was relevant.
Shaw initially objected to the questions regarding the burglary on the basis of relevance and as eliciting evidence concerning an extraneous offense. The trial court overruled the objection, but granted a running objection to this line of questioning. However, during the testimony of the same witness who was testifying when Shaw was granted a running objection, Shaw's counsel affirmatively stated that he had "no objection" to the admission of the photograph of the broken church window.
Texas has long held that the admission of inadmissible evidence over a valid objection does not constitute reversible error where the "same facts" have been admitted into evidence without objection. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999); East v. State, 702 S.W.2d 606, 611 (Tex. Crim. App. 1985); Brasfield v. State, 600 S.W.2d 288, 296 (Tex. Crim. App. 1980); Boles v. State, 598 S.W.2d 274, 279-80 (Tex. Crim. App. [Panel Op.] 1980). "Where facts complained of are admitted without objection by other competent evidence, no reversible error is presented." Boles, 598 S.W.2d at 279.
Further, if an objection to evidence has been made and action has been taken that preserves the court's erroneous ruling for appeal, but counsel says "no objection" when that evidence is actually offered, counsel's comment constitutes a waiver of the previously preserved error. See Boykin v. State, 504 S.W.2d 855, 857 (Tex. Crim. App. 1974); Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992); Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988).
Shaw properly objected to the line of questioning regarding the church burglary and obtained a running objection, preserving any error for appellate review. However, after obtaining the running objection, Shaw took an inconsistent stance by stating he had "no objection" to the admission of the photograph depicting the broken window of the church. By not qualifying his "no objection" in any way, Shaw has failed to preserve any complaint for appeal regarding the evidence of the church burglary.
Even if Shaw did not waive his running objection at that time, he later waived it by failing to object to the same facts when introduced by the testimony of Othell LaFerney, pastor of Glenwood Baptist Church. LaFerney testified regarding the break-in at the church and testified that a radio belonging to one of the Sunday School teachers was stolen. Although covered by the subject matter of the running objection, Shaw did not object to this testimony. This testimony occurred on a different day at trial and was introduced following the testimony of thirteen intervening witnesses.
We recognize that a properly framed running objection can extend to testimony by all witnesses pertaining to the same type of evidence, but such did not exist in this case. See Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996); Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.-Texarkana 2000, pet. denied); Scaggs v. State, 18 S.W.3d 277, 292-93 (Tex. App.-Austin 2000, pet. ref'd). Shaw did not request the running objection. Rather, the trial court granted the running objection sua sponte "on this line of questioning." Such running objection was not adequate to apply to all witnesses. By failing to object when the same evidence was offered again, Shaw waived any complaint as to the trial court's ruling. Fuentes, 991 S.W.2d at 273; Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Shaw has failed to preserve this complaint for appeal.
Shaw also complains about the testimony concerning his drug use. He first complains about the testimony of an investigating officer, Roxanne Bedwell, describing how Shaw used a beer can as a "pipe." The context of this testimony is as follows:
Q. . . . Was there some information that you had received from one of the jailers regarding the defendant.
A. Yes.
Q. As a result of receiving that information, what action did you take?
A. I spoke with the defendant in the jail and he agreed to go with myself and Chief Deputy Jordan to two different locations that he felt may help us in our investigation.
Q. Okay. And what, if anything, did you receive from those locations?
A. I found a beer can that had been made into a pipe to smoke marijuana . . . .
. . . .
Q. All right. And you indicated that you picked up a beer can; is that correct?
A. That is correct.
Q. . . . [Y]ou said something about it being made into a pipe; is that correct?
A. That is correct.
Q. And did that match what the defendant told you as well?
A. Yes, it did.
Q. Did he indicate he had used that particular item?
A. Yes, he did.
Q. And if you could, explain to the jury how it was made into a pipe, if you can.
A. It had holes punctured on the top where you would lay the substance that you wanted to smoke and light it while you breath [sic] in through the hole that you drink out of.
Q. In the conversation that you had had with the defendant did he make any indication to you that he had utilized drugs during the period of time from March the 9th through March the 12th?
A. Yes, he did.
[Defense Counsel]: Your Honor, I object to that, not relevant to the cause at bar and just too general a question.
THE COURT: I'm going to overrule the objection.
Q. [By Prosecuting Attorney]: What kind of drugs did he indicate that he had used?
A. He indicated to me that he had used alcohol, marijuana dipped in formaldehyde, and crack cocaine.
The specific question to which Shaw objected concerned whether Shaw told Bedwell he used drugs between March 9 and March 12. There was no objection to the testimony regarding the beer can that was used as a "pipe." By failing to object to the officer's testimony regarding the "pipe," Shaw waived his right to complain on appeal about the admission of this evidence. Tex. R. App. P. 33.1; Mathis, 67 S.W.3d at 926-27; Ladd, 3 S.W.3d at 569.
Shaw further contends the trial court erred in admitting the testimony of Bedwell quoted above concerning what kind of drugs he used. Shaw argues that this evidence was irrelevant to the crime for which he was charged and that his use of drugs was not connected to the commission of the crime.
Even assuming the last objection Shaw made before this testimony was given preserved the alleged error in the admission of this testimony, the State adduced this same evidence without further objection during its cross-examination of Bedwell, after Shaw called her as a witness. In order to preserve error, the objecting party must object each time the objectionable evidence is offered. Fuentes, 991 S.W.2d at 273; Ethington, 819 S.W.2d at 858. By failing to object when the same evidence was offered again, Shaw waived any complaint. Fuentes, 991 S.W.2d at 273; Ethington, 819 S.W.2d at 858.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: May 16, 2002
Date Decided: June 12, 2002
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00020-CV
______________________________
GLENN STELLY, Appellant
V.
GABE TARR, Appellee
On Appeal from the County Court at Law
Bowie County, Texas
Trial Court No. 10-C-0921-CCL
Before Carter, Moseley and Cornelius,* JJ.
Opinion by Justice Moseley
________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
O P I N I O N
Gabe Tarr, a past director of the HRC Foundation, Inc. (Foundation),[1] sued Glenn Stelly, the president of the Foundation, individually, for defamation. Tarrs suit alleged that removal of his name as a board member for misdirect[ing] significant funds from the Foundation served to effectively defame him and damage his reputation. Stelly, a Louisiana resident, challenged the trial courts personal jurisdiction by filing a special appearance. He appeals the trial courts denial of his special appearance.[2] Because we conclude that Stelly was not subject to in personam jurisdiction in Texas, we reverse the trial courts judgment and render a judgment dismissing the case for lack of personal jurisdiction.
I. Standard of Review
In Tarrs suit against nonresident defendant Stelly, the initial burden of proof to plead sufficient allegations to bring Stelly within the provisions of the Texas long-arm statute was upon Tarr. Motor Car Classics, LLC v. Abbott, 316 S.W.3d 223, 229 (Tex. App.Texarkana 2010, no pet.) (citing Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010)). If Tarr met his pleading burden, the burden of proof shifted to Stelly, who was required to negate all possible grounds for personal jurisdiction alleged by Tarr. Id.; see BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). Personal jurisdiction is a question of law, which we review de novo. Abbott, 316 S.W.3d at 22930 (citing Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009)); Milacron Inc. v. Performance Rail Tie, L.P., 262 S.W.3d 872, 875 (Tex. App.Texarkana 2008, no pet.).
In resolving this question of law, a trial court must often resolve questions of fact. Abbott, 316 S.W.3d at 230 (citing Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 80506 (Tex. 2002)); Milacron, 262 S.W.3d at 875. Our courts of appeals may review the fact-findings for both legal and factual sufficiency. Abbott, 316 S.W.3d at 230 (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)). We review de novo the trial courts legal conclusions. Id. (citing Marchand, 83 S.W.3d at 794); Milacron, 262 S.W.3d at 875. Because the record in this case does not contain findings of fact and conclusions of law, we must imply all findings of fact necessary to support the trial courts judgment that are supported by the evidence. Id. (citing Marchand, 83 S.W.3d at 795).
II. The Trial Court Did Not Have Personal Jurisdiction Over Stelly
The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); Intl Shoe Co. v. State of Washington, Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945). A Texas court may exercise personal jurisdiction over Stelly to the extent authorized by state and federal due process standards and the long-arm statute. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990). The Texas long-arm statute permits the exercise of personal jurisdiction over a nonresident defendant, limited by the federal constitutional requirements of due process. Abbott, 316 S.W.3d at 230. Personal jurisdiction over Stelly was properly exercised within the confines of due process if (1) Stelly had established minimum contacts with Texas and (2) the exercise of jurisdiction over him comported with traditional notions of fair play and substantial justice.[3] Id. (citing Washington, 326 U.S. at 316).
Federal due process mandates that Stelly purposefully avail himself of the privilege of conducting activity within the forum state, thus invoking the benefits and protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 47476 (1985); Hanson v. Denckla, 357 U.S. 235, 253 (1958). This minimum contacts analysis protects Stelly from being hailed into court if his relationship with Texas is too attenuated to support jurisdiction. Abbott, 316 S.W.3d at 230 (citing Schlobohm, 784 S.W.2d at 357). Stellys activities, whether they consisted of direct acts within Texas or conduct outside Texas, must justify a conclusion that he could reasonably anticipate being called into court in Texas.[4] Id. (citing Woodson, 444 U.S. at 297). It is the quality and nature of Stellys contacts, rather than their number, that are important to the minimum contacts analysis. Id.
To meet purposeful availment, we first note that it is only Stellys contacts with the forum that count: [because] purposeful availment ensures that a defendant will not be haled into a jurisdiction solely as a result of . . . the unilateral activity of another party or a third person. Michiana Easy Livin Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005); Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). Second, the acts relied on cannot be random, isolated, or fortuitous. Holten, 168 S.W.3d at 785. Third, a defendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. Id. Jurisdiction is premised on notions of implied consent--that by invoking the benefits and protections of a forums laws, a nonresident consents to suit there. Id.
A. Specific Jurisdiction Was Not a Theory Presented to the Trial Court
Personal jurisdiction may be based either on specific jurisdiction or general jurisdiction. For the trial courts exercise of specific jurisdiction over Stelly to be proper, two requirements must have been met: (1) Stellys contacts with the forum must have been purposeful, and (2) Tarrs cause of action must have arisen from or relate to those contacts. Id. at 795; Coleman, 83 S.W.3d at 806; Guardian Royal Exch. Assur., 815 S.W.2d at 227.
It appears that the theory of specific jurisdiction over Stelly has not been pursued by Tarr. At the trial level hearing on Stellys special appearance, Tarrs trial counsel stated, We are not pursuing specific jurisdiction in this matter because I dont think were in a position to prove that. In addition, no argument on appeal supports the position that Stellys contacts with Texas gave rise to Tarrs suit for defamation.
B. Stelly Did Not Subject Himself to General Jurisdiction
Tarrs remaining option was to establish that Stellys contacts gave rise to general jurisdiction. General jurisdiction exists when the defendants contacts with Texas are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. Abbott, 316 S.W.3d at 230 (quoting Marchand, 83 S.W.3d at 796). If subject to general jurisdiction in Texas, the trial court would be permitted to exercise jurisdiction over Stelly even if the cause of action did not arise from or relate to his contacts with the forum. Id. (citing Coleman, 83 S.W.3d at 80607). Because general jurisdiction is a more demanding minimum contacts analysis than specific jurisdiction, Stellys contacts should be such as to justify categorizing [him] as a resident of this State. Id. at 23031; In re Estate of Davis, 216 S.W.3d 537, 544 (Tex. App.Texarkana 2007, pet. denied).
Tarr informed the trial court that HRC, Inc., is a nonprofit organization, whos engaged in training water dogs, the majority of these being labs, to hunt water fowl. With respect to Stellys contacts with the State of Texas, Tarr testified:
Well, Glenn Stelly is also a judge among [the local] HRC, so any time we have a field trial here in Bowie County, which we have once a year, frequently he comes. Also, he is a dog owner, so sometimes he runs his dogs. He has numerous contacts with [Texas resident] Mike Dettrick. Mike Dettrick is the treasurer for HRC, Inc., so, therefore, if theres any monies that he gives to the foundation, vice versa, he will have to have conversations with -- with Glenn. [Texas resident] Claudine Cooper being the secretary, obviously, and Glenn being the president, obviously, you expect a normal president to administrator [sic] contacts. I cant tell you how many, but you would expect there to be a [sic] quite a few number of those.
Tarr also testified Stelly contacted him in connection with his work as a Foundation board member. In addition to seeking sponsorships, Tarr claimed that a local HRC affiliate, the Four States Hunting Retriever Club, Inc. (Four States), would obtain items from local vendors and raffle them for revenue at the yearly hunt in Maud, Texas. Stelly was present in Texas for a period of four days in 2006 to serve as a judge for the Four States yearly hunt.
A grand hunt of HRC, Inc., was held in 2007 in Maud. Tarr testified Stelly was on the national grand hunt committee and that Tarr contacted him to obtain the tax ID number for the Foundation. Tarr testified, [Stelly] and I had a long, long conversation about the local club and check and can we do this, can we not do this . . . . This telephone call by Tarr prompted other calls from Louisiana to Texas, which resulted in a great relationship of [Tarr] helping him understand what a foundation can and cannot do. Stelly was present during the grand hunt, which lasted five days. Tarr testified that no director of the Foundation is paid for their service.
General jurisdiction is premised on the notion of consent. That is, by invoking the benefits and protections of a forums laws, a nonresident defendant consents to being sued there for any cause of action. Coleman, 83 S.W.3d at 808. We do not find that Stelly subjected himself to general jurisdiction on the basis of an unknown number of telephone calls made to three people in this State.[5] See Marsh v. Marsh, 241 S.W.3d 570, 578 (Tex. App.El Paso 2007, no pet.) (social trips to Texas and telephone calls did not give rise to general jurisdiction); Eakin v. Acosta, 21 S.W.3d 405, 410 (Tex. App.San Antonio 2000, no pet.) (Even when coupled with written correspondence and isolated trips to the forum state, long-distance telephone calls are generally not considered purposeful activities directed toward residents of the forum state.), disapproved on other grounds by Marchand, 83 S.W.3d at 794 n.1; N803RA, Inc. v. Hammer, 11 S.W.3d 363, 368 (Tex. App.Houston [1st Dist.] 2000, no pet.) (nonresident defendants contact of Texas company, numerous telephone calls to the company over period of year, and receiving commissions by checks drawn on Texas bank insufficient to support general jurisdiction). Nor can we conclude that Stellys attendance as a judge in Texas for two hunts, one by invitation from Four States, and another whose location was chosen by the Foundation, is sufficient to subject him to general jurisdiction. Coleman, 83 S.W.3d at 809 (attendance at the five Texas conferences does not support the exercise of general jurisdiction. The record reflects that the scientific community, not ATCC, selected the conference locations.) (citing Natl Indus. Sand Assn v. Gibson, 897 S.W.2d 796, 774 (Tex. 1995) (no general jurisdiction where nonresident association sent an association representative to national conference in Texas)). Also, because Stelly was not paid for his volunteer activities with the Foundation, contacts with Texas were not grounded on any expectation or necessity of invoking the benefits and protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas. UAnchor Adver., Inc. v. Burt, 553 S.W.2d 760, 763 (Tex. 1977). Thus, the record does not demonstrate purposeful availment.
We find that Stellys contacts with the State of Texas, comprised of telephone calls in his capacity as a Foundation director, and personal visits totaling approximately twelve days, were random, rather than continuous and systematic. The contacts were not such as to justify categorizing [Stelly] as a resident of this State. Schexnayder v. Daniels, 187 S.W.3d 238, 243 (Tex. App.Texarkana 2006, pet. dismd w.o.j.). General jurisdiction was not established.[6]
III. Conclusion
We reverse the trial courts judgment and render dismissal of the cause for want of personal jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: June 16, 2011
Date Decided: June 17, 2011
[1]HRC Foundation, Inc. is an Illinois nonprofit organization which raises funds for the Hunting Retriever Club., Inc. (HRC, Inc.).
[2]As an interlocutory ruling on a special appearance, the order was immediately appealable. Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West 2008).
[3]We are to consider first whether the defendant has established minimum contacts with Texas; if that threshold is met, we then consider whether the assertion of jurisdiction comports with fair play and substantial justice. See Marchand, 83 S.W.3d at 795.
[4]Our long-arm statute allows Texas courts to exercise jurisdiction over foreign defendants who are doing business within the state. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (West 1997); CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996); Kelly Inv., Inc. v. Basic Capital Mgmt., Inc., 85 S.W.3d 371, 374 (Tex. App.Dallas 2002, no pet.).
[5]On appeal, Stelly also argued that he was immune from general jurisdiction under the fiduciary shield doctrine. The record does not demonstrate that such an argument was raised below. As a result, we decline to consider it on appeal. Alencar v. Shaw, 323 S.W.3d 548, 556 (Tex. App.Dallas 2010, no pet.) (declining to address fiduciary shield doctrine where not argued to trial court below).
[6]Given that we do not find purposeful availment, we need not address whether the exercise of jurisdiction would comport with fair play and substantial justice.