COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-010-CR
JOE SAM JONES JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Joe Sam Jones Jr. appeals his conviction for driving while
intoxicated with a passenger under fifteen years of age. 2 In one point,
Jones argues that the trial court erred by allowing the prosecutor to question
a witness regarding the criminal history of his family members during the
punishment phase. We will affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. ' 49.045 (Vernon Supp. 2009).
Jones entered an open plea of guilty to the charged offense and pled
true to the state jail felony enhancement paragraph. On December 8, 2008,
after reviewing the presentence investigation (PSI) report and hearing
testimony from Jones=s two witnesses, the trial court sentenced Jones to
four years= imprisonment. This appeal followed.
In his sole point, Jones argues that the trial court erred by allowing the
prosecutor to ask an improper question during the punishment phase. Jones
called his aunt, Nancy Moffatt, to testify on his behalf. During her
testimony, the following exchange took place:
[State]: Is he very close to his brother and sister, Darrel and
Taylor?
[Moffatt]: You know, I don=t - - he - - I don=t know how close he
was. In the past he, you know, when they were growing up,
they were, but I don=t think they - - he=s had anything to do with
them. I=ve never had anything to do with them since they were
very little.
[State]: What about Veranda?
[Moffatt]: Veran, that was the stepfather=s mother who raise - -
you know, the stepfather was married to his mother during the
time he was being raised.
[State]: Were you aware that Darrel and Taylor and Veranda all
have criminal histories here in Tarrant County?
[Defense Counsel]: I=m not sure their criminal history is
relevant. No, the reason I=m saying is, we=ve already established
2
he=s not close to them. He doesn=t deal with them, therefore,
their criminal history is not relevant at this point.
[State]: Well, the Defendant listed them in his PSI as family
members so I think he is close to them or has a relationship. If
she doesn=t have any knowledge, that=s her answer.
[The Court]: I think she=s answered she doesn=t have any
knowledge.
[State]: I think that=s all the questions I have. Thank you,
ma=am.
The State argues that Jones failed to properly preserve error for this
appeal because he did not obtain a ruling on his objection. To preserve a
complaint for our review, a party must have presented to the trial court a
timely request, objection, or motion, and 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)(1)-(2).
It is apparent from the record that the trial court did not expressly rule
on Jones=s objection. Assuming without deciding that the trial court
implicitly overruled Jones=s relevancy objection, the trial court did not abuse
its discretion by admitting the evidence as to Brandon Verran, 3 Jones=s
3
At the punishment hearing, the prosecutor refers to Jones=s brother as
ADarrel,@ but the PSI report lists his brother as ABrandon.@ Jones only lists
one brother and one sister in the PSI report. Accordingly, for our analysis,
we will assume ABrandon@ and ADarrel@ are the same person and will refer to
3
brother, and Talor Verran, 4 Jones=s sister. See Dahlem v. State, No.
02-08-334-CR, 2010 WL 1854413, at *5 (Tex. App.CFort Worth May 6,
2010, no pet.) (reasoning that a trial court=s ruling need not be expressly
stated if its actions or other statements otherwise unquestionably indicate a
ruling).
We review a trial court=s decision to admit or exclude evidence under
an abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542
(Tex. Crim. App. 2000). A trial court does not abuse its discretion as long
as its decision is within the zone of reasonable disagreement. Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).
Evidence is relevant if it has any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence. Tex. R. Evid. 401.
Here, one of the issues before the trial court was whether Jones was a
suitable candidate for community supervision. Jones argues that the
prosecutor=s question was not relevant because Moffatt testified that she did
him as ABrandon.@ However, if ABrandon@ and ADarrel@ are not the same
person, see our harm analysis below.
4
The reporter=s record indicates the correct spelling as ATaylor,@ but the
PSI report lists the spelling as ATalor.@ We will refer to her as ATalor@ for our
analysis.
4
not think Jones Aha[s] anything to do with them.@ This statement, however,
was a response to the prosecutor=s question about whether Jones was close
to his brother or sister, not whether Jones was close to Veranda, another
relative. Moffatt did not testify regarding Jones=s contact with Veranda.
In the PSI report, Jones stated that he sees Talor Aonce a week@ and
that he talks with her on the telephone Aonce a week or more.@
Additionally, Jones stated that he talks with Brandon Aevery other day@ and
that he sees him in person Aonce a week.@ Veranda is not listed in the PSI
report.
The character and criminal background of the family members with
whom Jones would associate is arguably relevant to his suitability for
community supervision. See, e.g., Tex. Code Crim. Proc. Ann. art. 42.12,
' 11(a)(3) (Vernon Supp. 2009) (listing A[a]void[ing] persons or places of
disreputable or harmful character@ as a basic condition of community
supervision); see also Williams v. State, Nos. 02-08-00033-CR,
02-08-00036-CR, 02-08-00034-CR, 02-08-00035-CR, 2009 WL 673288,
at *2 (Tex. App.CFort Worth Mar. 12, 2009, pet. ref=d). Even though
Moffatt stated that Jones does not have contact with his brother or sister,
Jones stated in the PSI report that he has weekly contact with them.
Because one of the conditions of community supervision is to avoid persons
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of disreputable or harmful character, we hold that the trial court did not
abuse its discretion by overruling Jones=s relevancy objection as it relates to
Brandon and Talor.
Assuming without deciding that the trial court abused its discretion by
overruling Jones=s objection as it relates to Veranda, and to the extent
ABrandon@ and ADarrel@ are not the same person, 5 we must determine
whether the error was harmful. The erroneous admission of evidence is
nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997). Nonconstitutional error Athat does not affect substantial
rights must be disregarded.@ Tex. R. App. P. 44.2(b). A substantial right is
affected when the error had a substantial and injurious effect or influence in
determining the jury=s verdict. King, 953 S.W.2d at 271 (citing Kotteakos
v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946));
Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.CFort Worth 1998,
pet. ref=d). Conversely, an error does not affect a substantial right if we
have Afair assurance that the error did not influence the jury, or had but a
slight effect.@ Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
5
We will refer to him as ADarrel@ in this section.
6
Here, even though the prosecutor questioned Moffatt about whether
she was aware that Veranda and Darrel both had criminal histories in Tarrant
County, Moffatt never responded to the question. Additionally, the trial
court heard testimony that while out on bond for this offense, Jones tested
positive for alcohol on two separate occasions during urinalysis tests and
that he failed three breath tests on his Interlock device during the month of
April 2008. Additionally, the PSI report detailed Jones=s extensive juvenile
record, adult misdemeanor record, and adult felony record. The PSI report
also listed Jones=s prior drug and alcohol use. Furthermore, the trial court
heard testimony that Jones=s father served fourteen years of a fifty-year
sentence in prison for aggravated assault with a deadly weapon and
manufacturing a controlled substance. Viewing the record as a whole, we
conclude with fair assurance that the error, if any, either did not influence
the trial court or that it had but a slight effect on the trial court. See Motilla
v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Solomon, 49 S.W.3d
at 365.
In sum, we hold that the trial court did not abuse its discretion by
allowing the prosecutor to question Moffatt about Talor and Brandon=s
criminal history. Furthermore, we hold that the error, if any, by allowing the
7
prosecutor to question Moffatt regarding Veranda and Darrel=s criminal
histories is harmless. Accordingly, we overrule Jones=s sole point.
Having overruled Jones=s sole point, we affirm the trial court=s
judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 22, 2010
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