Karen Gore v. Jainaba Faye

NO. 07-06-0218-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 14, 2008

______________________________

KAREN GORE, APPELLANT

JAINABA FAYE, APPELLEE

_________________________________

FROM THE 99^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-527,298; HONORABLE WILLIAM SOWDER, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

Â Â Â Â Â Â Â Â Â Â Appellant Karen Gore appeals from a judgment in favor of appellee Jainaba Faye following a jury trial in a personal injury suit. Gore contends on appeal the trial court was required by section 41.0105 of the Texas Civil Practice & Remedies Code to allow evidence before the jury of payments and discounts applied on Fayeâs medical bills, and erred by keeping this evidence from the jury. Finding no abuse of discretion in the courtâs action, we affirm.

Background

Â Â Â Â Â Â Â Â Â Â Faye and Gore were the drivers of vehicles that collided in Lubbock, Texas. Seeking recovery for her personal injuries, and alleging Goreâs negligence proximately caused her injuries, Faye brought suit against Gore.

Â Â Â Â Â Â Â Â Â Â In her amended answer to Fayeâs suit, Gore plead that, pursuant to section 41.0105, Fayeâs recovery for medical expenses was limited to the amounts of reasonable and necessary medical expenses âwhich were paid and accepted rather than the total of the charged medical expenses.â Alternatively, Gore plead, she was entitled to a credit against any medical expense damage award for amounts ânot charged to [Faye], amounts written off or discounted, or, in any event, in an amount equal to the difference between the total charges and the sum which was paid and accepted as payment in full.â Gore made the same allegations in a separate paragraph of her answer addressed âto the Court only.â

Â Â Â Â Â Â Â Â Â Â At trial, Faye presented, without objection, evidence of the amounts charged by four healthcare providers for treatment of her injuries. The evidence was in the form of statutory affidavits that included opinions the services were necessary and the charges reasonable, and included itemized statements from the providers. The four providers, their charges and services were University Medical Center (UMC), $573.80 for ambulance services; Covenant Health System (Covenant), $2,690.30 for emergency medical treatment; Lubbock Diagnostic Radiology, L.L.P., (Lubbock Radiology), $248.00 for x-ray and diagnostic services; and Merritt Chiropractic, P.C. (Merritt), $4,574.00 for chiropractic treatment.

Â Â Â Â Â Â Â Â Â Â The itemized statement attached to the affidavit of Covenantâs custodian of records was redacted to obscure entries reflecting a discount of $2190.30 and a payment of $400.00 against the initial $2690.30 charge, and to obscure an entry showing the resulting âofc balanceâ of $100.00. The statement attached to the affidavit from Lubbock Radiology similarly was redacted to obscure entries showing an âadjustmentâ of $146.94 and a payment credit of $101.46. As redacted, the statements showed the jury only the total initial charges. The statements of UMC and Merritt contained no payment credits or discounts.

Â Â Â Â Â Â Â Â Â Â The record indicates that, before and during trial, the parties and the court were conscious of and concerned with the requirements of section 41.0105, and suggests that the means of implementation of the statute were discussed with the court off the record. At a point during Fayeâs case in chief, the court conducted an off-the-record bench conference. It then excused the jury, and Gore requested and was allowed to make an offer of proof concerning the payments and discounts applied to the Covenant and Lubbock Radiology charges.

Â Â Â Â Â Â Â Â Â Â Goreâs counsel explained the purpose of the offer of proof: âif the court does not allow the testimony into evidence in front of the jury, I would like to at least present it now for the court to consider after the verdict and before a judgment is entered.â The court discerned the basis of the offer was: âdue to some kind of contract or an agreement with a health care provider that what was actually accepted in full is less than what was charged Plaintiff; is that correct?â Goreâs counsel agreed with this assessment.

Â Â Â Â Â Â Â Â Â Â Gore then called the records custodians for Covenant and Lubbock Radiology as witnesses for the offer of proof. Each testified that Fayeâs charges were discounted pursuant to a contract between the provider and Fayeâs health insurance company FirstCare. Through these witnesses, Gore offered unredacted copies of the previously admitted affidavits of services and charges of Covenant and Lubbock Radiology.

Â Â Â Â Â Â Â Â Â Â At the conclusion of the offer of proof, the court restated Goreâs position: âAnd then he is making a motion to offer the testimony of [the records custodians] in front of the jury.â On the courtâs request for a response, Fayeâs counsel voiced an objection to the testimony of the records custodians before the jury. The court then ruled:

The court is going to sustain her objection and overrule you, preventing you from putting this in front of the jury. And the courtâs of the opinion, at this time, until further guidance is given the court, that it is a post-verdict pre-judgment matter. And so the offer of proof will stand but I will not allow that testimony in front of the jury.

Â Â Â Â Â Â Â Â Â Â The following exchange then occurred:

[Goreâs counsel]: âOkay. And, Your Honor, in the alternative then, we would ask the court to consider the testimony post-verdict pre-judgment.â

[The Court]: âYes, we will do that.â

Â Â Â Â Â Â Â Â Â Â * * *

[Fayeâs counsel]: âAnd, Your Honor, for clarification, defense exhibitsâI donât remember the numbers, but those include information regarding adjustments, will not be presented to the jury?

[The Court]: âThatâs right. That is just for the Judge before he preparesâexecutes a judgment.â

Â Â Â Â Â Â Â Â Â Â At the charge conference, neither party objected to the proposed damage question which in part inquired what amount of money would compensate Faye for âreasonable expenses of necessary medical care actually incurred in the past.â The jury found each party negligent, assessed fault at 25% to Faye and 75% to Gore, and awarded Faye $250 for past physical pain, $6,391.10 for past medical expenses, and zero for past lost wages.

Â Â Â Â Â Â Â Â Â Â Â After receipt of the verdict and discharge of the jury the court determined it was not feasible to accurately offset the past medical charges according to Goreâs section 41.0105 evidence because the jury awarded an amount less than the total amount of charges presented by Fayeâs affidavits. The court signed a judgment awarding Faye the full amount of past medical expenses found by the jury, reduced by the percentage of fault the jury attributed to Faye.

Â Â Â Â Â Â Â Â Â Â Gore moved for a new trial asserting factual and legal insufficiency of the evidence supporting the award of past medical expenses because of the limiting effect of section 41.0105 and abuse of discretion by the court for not admitting Goreâs section 41.0105 evidence before the jury. The motion for new trial was apparently overruled by operation of law and this appeal followed.

Issue Presented

Â Â Â Â Â Â Â Â Â Â Gore brings a single issue on appeal:

âThe trial court erred in excluding properly offered exhibits and testimony concerning the amounts of medical expenses actually paid and accepted by Appelleeâs health care providers as payment in full.â

Â Â Â Â Â Â Â Â Â Â As noted, the trial court admitted Goreâs section 41.0105 evidence, but only for its post-verdict consideration in fashioning a judgment. Goreâs argument in her brief makes clear that her complaint is the trial court abused its discretion by not allowing her to present the section 41.0105 evidence for the juryâs consideration in answering the past medical expense damages question. Goreâs contention is that admission of the evidence before the jury for that purpose was required by section 41.0105. She does not argue it was admissible for any purpose other than implementation of that statute.

Discussion

Â Â Â Â Â Â Â Â Â Â The admission and exclusion of evidence at trial is committed to the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). See also Dow Chemical Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001); Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488, 491 (1943) (both noting great discretion vested in trial court over conduct of trial). A trial court abuses its discretion when its ruling is arbitrary, unreasonable or without reference to any guiding rules or legal principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)

Â Â Â Â Â Â Â Â Â Â The correctness of Goreâs position that the trial court was required to admit her section 41.0105 evidence before the jury is not apparent from the language of section 41.0105. The legislature enacted the section as an addition to chapter 41 of the Civil Practice and Remedies Code, which chapter âestablishes the maximum damages that may be awarded in an actionâ subject to its provisions. Tex. Civ. Prac. & Rem. Code Ann. Â§ 41.002(b) (Vernon Supp. 2007). By its language the limitation on damages prescribed by section 41.0105 is mandatory. But unlike other provisions of chapter 41, section 41.0105 contains no procedural direction for its application at trial. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. Â§ 41.008(a), (e) (Vernon Supp. 2007) (prescribing separate determinations of economic and other compensatory damages, and prohibiting making provisions known to jury); Tex. Civ. Prac. & Rem. Code Ann. Â§ 41.009 (Vernon 1997) (requiring bifurcated trial on motion); Tex. Civ. Prac. & Rem. Code Ann.Â§Â§ 41.003(e) and 41.012 (Vernon 1997 and Supp. 2007) (mandating jury instructions in cases involving claims for exemplary damages).

Â Â Â Â Â Â Â Â Â Â In their appellate briefs, the parties devote a good deal of attention to the question whether introduction before the jury of evidence that Faye benefitted from her insurerâs contractual agreements with Covenant and Lubbock Radiology runs contrary to the collateral source rule. Gore contends that admission of such evidence does not violate the collateral source rule. Review of the record convinces us that disposition of this appeal does not require our evaluation of the impact of section 41.0105 on the collateral source rule. This appeal presents only the narrow procedural question whether the trial court was required to implement section 41.0105 through presentation of evidence to the jury. Even if Gore is correct that admission of her section 41.0105 evidence would not violate the collateral source rule, it is obvious that the admission of such evidence before the jury in a personal injury case involves a significant departure from existing trial practice in Texas. See, e.g., Taylor, 132 S.W.3d at 625 (âIt is generally considered error for insurance coverage of either party to be mentioned by the other party during trial of a personal injury cause of action.â (citations omitted)). Without a more explicit statutory provision or guidance from our supreme court, we see no abuse of discretion in the trial courtâs decision to apply section 41.0105 post-verdict.

Â Â Â Â Â Â Â Â Â Â Goreâs single issue is overruled, and the trial courtâs judgment is affirmed.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

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NO. 07-08-00290-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 16, 2010

THOMAS LEWIS, APPELLANT

THE STATE OF TEXAS, APPELLEE

FROM THE 211TH DISTRICT COURT OF DENTON COUNTY;

NO. F-2006-2346-C; HONORABLE L. DEE SHIPMAN, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

A jury convicted appellant Thomas Lewis of aggravated sexual assault^{^[1]} and indecency with a child^{^[2]} and assessed punishment, enhanced by two prior felony convictions, at consecutive life sentences.Â Through two points of error, appellant challenges the admission of evidence during the punishment phase of trial concerning his positive HIV status.Â Concluding the trial court did not err by allowing admission of the evidence, we affirm the trial court=s judgment.

Background

Appellant was charged by indictment with penetrating, with his finger, the female sexual organ of a child younger than 14 years of age and not his spouse and, with the intent to arouse or gratify his sexual desire, exposing his genitals to the same child.Â The victim of his offenses was a ten-year-old girl.

At trial, the victim testified she stopped by her grandfather=s recently vacated apartment on her way home from school one day to see if items had been left behind.Â Appellant walked by and asked if she wanted to go inside her grandfather=s apartment.Â She agreed and went with appellant to retrieve the key. Â Once they were inside the apartment, appellant told the girl to get into a closet.Â He threatened to hit her and told her to pull down her pants.Â She complied.Â With the two of them sitting facing each other, appellant inserted his finger into the victim=s vagina.Â While doing so, he masturbated until he ejaculated.Â He then allowed the victim to leave.

The victim went home, visibly upset, and told her mother and stepfather what happened.Â The victim later identified appellant as the person who assaulted her. She told police appellant was wearing purple shorts when he assaulted her.Â Police later found purple shorts in appellant=s home. The shorts had a semen stain and a blood stain on them.Â

During the punishment phase of the trial, the State introduced testimony indicating appellant told a police officer he was HIV positive.Â Appellant objected to this testimony under Rules 401 and 403 of the Texas Rules of Evidence.Â The trial court overruled the objection and allowed the officer to testify that appellant told her Ahe was HIV positive.@Â The State highlighted this fact, along with evidence of appellant=s extensive criminal history, to the jury during closing punishment argument.Â

On appeal, appellant reiterates his Rule 401 and Rule 403 objections to the officerÂs statement.Â Tex. R. Evid. 401, 403.Â

Applicable Law

Texas Code of Criminal Procedure article 37.07, Â§ 3(a), governs the admissibility of evidence at a trial's punishment phase and grants the trial court broad discretion to admit evidence that it deems relevant to sentencing.Â See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon 2007).Â Under the plain language of the statute, during the punishment phase the State may offer evidence on any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, Â§ 3(a)(1) (Vernon 2007).Â In ascertaining what is relevant to sentencing, the focus is on what is helpful to a jury in deciding an appropriate sentence for a defendant. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004); Rodriguez v. State, 163 S.W.3d 115, 118 (Tex. App.--San Antonio 2005), affÂd, 203 S.W.3d 837 (Tex.Crim.App. 2006). The Court of Criminal Appeals has recognized that "relevance" in the punishment context is different than "relevance" as defined in Texas Rule of Evidence 401 because sentencing presents different issues than rendering a verdict on guilt or innocence. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (fact-finder in punishment chooses a sentence within a punishment range rather than deciding facts to determine whether a defendant is guilty).Â Admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy because, by and large, there are no discrete factual issues at the punishment stage.Â Id. Â Some of the policy reasons to be considered when determining whether to admit punishment evidence include giving complete information for the jury to tailor an appropriate sentence for the defendant; the policy of optional completeness; and admitting the truth in sentencing. Id. at 233-34 (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)).

In accordance with this policy, the Court of Criminal Appeals has stated that at the punishment phase of a non-capital felony trial, evidence relating to the Acircumstances of the offense itself or . . . the defendant himself@ before or at the time of the offense may be admitted.Â Miller-El v. State, 782 S.W.2d 892, 896 (Tex.Crim.App. 1990) (en banc); Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Crim.App. 1979), cert. denied, 449 U.S. 1114, 101 S.Ct. 926, 66 L. Ed. 2d 843 (1981).Â One such circumstance is the degree of the victim=s injury, including future consequences due to the injury, Aso long as the fact finder may rationally attribute moral culpability to the accused for that injury.@ Hunter v. State, 799 S.W.2d 356, 360 (Tex.App.BHouston [14^th Dist.] 1990, no pet.).Â Courts have recognized that a defendant=s HIV status is admissible as a Acircumstance of the offense@ in an aggravated assault case.^{^[3]}Â See, e.g., Hunter v. State, 799 S.W.2d 356, 359 (Tex.App.BHouston [14^th Dist.] 1990, no pet.). See also Suarez v. State, No. 14-03-00441-CR, 2004 WL 1660938 (Tex.App.BHouston [14^th Dist.] July 27, 2004, pet. ref=d) (counsel not ineffective for failing to object to testimony about defendant=s HIV status because it was admissible as a circumstance of the offense of aggravated sexual assault of a child).

Even where the trial court deems evidence relevant at the punishment stage, that evidence, upon objection, must still withstand a Rule 403 analysis to be admissible. Rodriguez, 163 S.W.3d at 119. Texas Rule of Evidence 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. The rule carries a presumption that relevant evidence will be more probative than prejudicial, therefore favoring admission. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Unfair prejudice can outweigh the probative value where the evidence has a tendency to influence a jury's decision on an improper basis. Rogers v. State, 991 S.W.2d at 266. Rule 403 requires exclusion of evidence only when there is "clear disparity" between the probative value and the degree of prejudice of the offered evidence. Jones, 944 S.W.2d at 652. Unfair prejudice does not include evidence that simply injures the opponent's case. Rogers, 991 S.W.2d at 266 (noting that injuring the opponent's case is the central point of offering evidence).

A trial court=s admission or exclusion of evidence is reviewed under an abuse of discretion standard.Â See Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999); Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1991) (op. on rehÂg).Â An abuse of discretion occurs when the trial court acts arbitrarily, unreasonably, or without reference to guiding rules or principles.Â Montgomery, 810 S.W.2d at 380.Â

Application

Appellant points to the single statement in the testimony of one police officer that appellant told her he was AHIV positive.@Â Appellant then focuses on part of the State=s closing argument:

When you get into punishment, you learn who that man is that you=re punishing.That=s kind of what we=ve seen here.Â Now, there was a little bit more about the crime that you learned in punishment that you didn=t know in sentencing, [sic] because not only do we have an aggravated sexual assault, we have an aggravated sexual assault on a ten-year-old girl by a man who knew he was HIV positive when he went forward to commit that assault.

Think about that.Â Think about the risks that he=s willing to place an innocent child in for his own pleasure, because that=s the difference we see in these crimes and this crime today.

***

A ten-year-old girl should not be facing the decision of having to think about the consequences of sexual contact.Â Her grandmother and mother should not have to have a conversation with her or anybody else about what does it mean that my child possibly could have HIV?Â Those are questions that this little girl does not deserve to face.

And those are the questions.Â Her life, her future, her relationships, all are at risk because this man decided that for his own personal benefit, his moment of enjoyment, her entire life was worth risking.Â That is what you are deciding on today.Â

Appellant contends evidence of his HIV-positive status was irrelevant absent an indication the victim actually was exposed to the virus or could have contracted it based on appellant=s actions.Â He points out no other evidence concerning HIV was introduced.Â There was no medical testimony presented and no medical records were introduced showing appellant had the disease.^{^[4]}Â No evidence explained that the contact between appellant and the victim exposed her to a risk of HIV infection.

Without such evidence, appellant argues, evidence of his mere volunteered statement that he is ÂHIV-positiveÂ was irrelevant.Â In contrast to the lack of such evidence here, appellant points to the evidence in Hunter, 799 S.W.2d at 360, which included transfer of ejaculate into the victimÂs mouth and genital area, and partial penetration of the childÂs vagina causing lacerations that bled.Â Additionally, testimony explained how those events could infect the victim.Â Id. at 359-60.Â Only the presence of such evidence, appellant argues, makes a defendantÂs HIV status a circumstance of the offense of viable concern at the punishment stage for aggravated sexual assault.Â

We agree with the State that the evidence was properly admitted.Â Even without medical evidence to verify it, appellantÂs volunteered statement has probative value to show he was infected by the HIV virus when he sexually assaulted the child, and knew it.Â Such evidence is relevant as a circumstance of the offense that the jury could consider in assessing punishment.Â See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (listing circumstances surrounding the convicted offense as a type of evidence admissible at punishment); Hunter, 799 S.W.2d at 360 (whether defendant was infected with AIDS virus was admissible as a Acircumstance of the offense@ at punishment stage for aggravated sexual assault).

The court in Atkins v. State, No. 05-07-00586-CR, 2008 Tex.App. LEXIS 5407 (Tex.App.BDallas July 23, 2008, pet. ref=d) (mem. op., not designated for publication) found evidence of the defendantÂs HIV status relevant to sentencing as a circumstance of the offense of attempted sexual performance of a child, despite the lack of evidence of any actual sexual contact.Â Atkins supports the StateÂs argument the jury may consider, as a circumstance of the offense, that appellantÂs recognized HIV-positive status placed the victim of his sexual assault at risk of infection, whether or not the evidence shows any actual transmission of body fluids in a manner likely to infect.

Moreover, the record here is not devoid of evidence that appellantÂs assault carried an actual risk of transmission of infection.Â Appellant placed his finger inside the victim=s vagina and testimony from the nurse who conducted the sexual assault examination indicated the victimÂs vaginal opening and hymen were red and irritated consistent with such contact.Â Appellant also ejaculated near the victim and had a blood stain and a semen stain on the shorts he was wearing.Â No such stains were found on the victim=s clothing but the nurse did indicate Aa light brown discharge from [the victim=s] vaginal area.@Â While appellant contends on appeal there is no evidence the victim bled, the jury could have inferred from this evidence that she did bleed at least to a slight degree. This evidence is closer to that found in Hunter than appellant argues.Â

Further, as have other courts, we find the probative value of evidence of appellantÂs HIV status is not substantially outweighed by the danger of unfair prejudice or distraction of the jury from its task of fashioning an appropriate sentence.Â See Hunter, 799 S.W.2d at 360; Atkins, No. 05-07-00586-CR, 2008 Tex.App. LEXIS 5407 at * 19.

Â We note also the jury had before it evidence of appellant=s prior six criminal convictions, committed over a twenty-eight year period, and evidence of the years appellant spent in prison for each of these offenses.Â The State highlighted the convictions in its closing argument.Â The jury also had before it evidence that at the time of the present offense, appellant had an outstanding parole violation warrant.Â

We find the trial court did not abuse its discretion in allowing the police officer to testify about appellant=s statement to her concerning his HIV status.^{^[5]}Â We overrule each of appellant=s two issues and affirm the judgment of the trial court.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Do not publish.

^{^[1]}Â See Tex. Penal Code Ann. ' 22.021 (Vernon 2007).

^{^[2]}Â See Tex. Penal Code Ann. ' 21.11 (Vernon 2007).

^{^[3]} Other courts have characterized this type of evidence as Avictim impact evidence@ that is relevant to sentencing.Â Victim impact evidence serves to show the circumstances of the offense and is relevant to sentencing under article 37.07.Â See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2007); Jones v. State, 963 S.W.2d 177, 183 (Tex.App.BFort Worth 1998, pet. ref=d), quoting Murphy v. State, 777 S.W.2d 44, 63 (Tex.Crim.App. 1988); Brooks v. State, 961 S.W.2d 396, 398-99 (Tex.App.BHouston [1^st Dist.] 1997, no pet.).Â This type of evidence bears on the defendant=s personal responsibility and moral guilt and is thus relevant to punishment issues.Â See Jones, 963 S.W.2d at 182-83, citing Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex.Crim.App. 1991) and Miller-El, 782 S.W.2d at 897.Â See also Martinez v. State, No. 05-03-01243-CR, 2004 WL 2378359 (Tex.App.BDallas Oct. 25, 2004, no pet.) (mem. op., not designated for publication) (concluding evidence concerning appellant=s HIV status and awareness was evidence related to the circumstances of the aggravated sexual assault offense and was admissible as victim impact evidence).

^{^[4]}Â The record reflects appellant=s counsel conceded during closing argument at the punishment phase that appellant is AHIV positive, so he=s going to be dying, maybe sooner than his normal life span would be...he=s got to be dealing with HIV, AIDS, while he=s serving the sentence.@Â Â Â Â Â Â Â

^{^[5]}Â Given our disposition herein, we do not reach appellant=s contentions that he was harmed by the trial court=s admission of the testimony.Â Tex. R. App. P. 47.1.

Karen Gore v. Jainaba Faye

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