MODIFY and AFFIRM; and Opinion Filed March 16, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01511-CR
ANTHONY SHANE KILLEBREW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-81884-2012
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
Anthony Shane Killebrew appeals his conviction for the third-degree felony offense of
assault-family violence against his teenage daughter. Appellant pleaded not guilty, and the jury
found him guilty as charged in the indictment. Appellant pleaded true to a prior conviction for
aggravated assault alleged for punishment enhancement, and the court assessed appellant’s
punishment at seven years’ incarceration.
Appellant raises two issues on appeal:
(1) The trial judge abused his discretion by not allowing appellant to stipulate to
the truth of the allegation of a prior conviction for assault family violence thereby
obviating the State’s need to inject a similar offense into the jury’s knowledge[;]
(2) The trial court abused its discretion by allowing a lay witness to give her
opinion that injuries exceeded reasonable discipline.
For the reasons that follow, we modify the judgment to reflect a plea of true to the prior
conviction for aggravated assault alleged for punishment enhancement and affirm the judgment
as modified.
BACKGROUND
AK testified that appellant hit her with his hands and a belt and kicked her in the ribs
because he thought she was taking too long to do her laundry. The next day at school, AK was
crying and holding her side. The assistant principal, Jona Boitmann, took AK to the nurse’s
office where Boitmann and the school nurse observed AK’s injuries. Boitmann called the school
resource officer, who called the police. An officer took pictures of AK’s injuries, and AK’s
mother took her to the hospital. Although AK did not have any broken ribs, she was bruised on
her chest and back and had other bruises and scratches from shoulder to ankle.
ISSUE 1: STIPULATION TO PRIOR CONVICTION
In the indictment the State alleged that appellant had a prior conviction for assault-family
violence, which, if proved, elevated the Class A misdemeanor to a third-degree felony. See TEX.
PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2014). Appellant argues that the trial court
abused its discretion by not allowing him to stipulate to the prior assault-family violence
conviction.
Procedural Background
In a hearing before voir dire began, appellant told the court that he would plead true to
the prior assault-family violence conviction and wanted “to stipulate to the jurisdiction” of the
district court. Appellant argued that by stipulating to the court’s felony jurisdiction, “the jury
should not be permitted to consider [the prior conviction for assault-family violence] because it’s
already established by his plea.” He argued that “he’s effectively denied a fair trial” if the jury
gets “to hear about another assault family violence that happened – that happened at an earlier
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date[.]” And he argued that he did not “see why a jury needs to be informed of a prior under
those circumstances.”
The State refused to accept appellant’s offer to stipulate and responded that it had “the
right to prove up the case as [it saw] fit” and to voir dire the jury panel to explain why the case is
“in felony court when it would otherwise be a misdemeanor.” The trial court “overruled”
appellant’s offer to stipulate, but agreed to give an instruction to the jury limiting the jury’s
consideration of the prior conviction to jurisdictional purposes only and not as evidence of guilt.
During voir dire, the State minimally referred to the prior conviction:
We’re here on an enhanced assault family violence case.
...
When we’re talking about assault family violence enhanced, we’re talking about
the following elements: That on or about a certain date in Collin County, Texas,
this defendant intentionally or knowingly or recklessly caused bodily injury to
another that they have a family relationship with. I have to prove how they did it.
I’ve alleged that in the indictment, so I will have to prove how they did it, and
that they have been convicted before of assault family violence, okay? (Emphasis
added).
Later in voir dire, a venire person asked the State what a prior conviction has to do with this
case, and the prosecutor responded:
It’s – it – to be in a felony court, certain offenses are enhanced with a prior
conviction. So it’s a – basically it’s a plea to the jurisdiction. That’s why you’re
in this court instead of one downstairs.
[venire person response]
Okay. And the Judge will instruct you, too, that that’s all you’re able to use it for,
but that’s why we’re in a district court instead of a county court.
Appellant’s counsel also referred to the prior conviction during voir dire:
So that we understand – first of all, you understand because you’ve been told by
the prosecutor that the defendant has been previously convicted of a misdemeanor
offense assault with a family member as that’s defined, and that’s very, very
broad. I’d like to tell you – the Judge will tell you – that that’s only to be
considered on the jurisdictional issue, but that’s kind of like everything else in
life. It’s hard to ignore what’s right there in front of you no matter what maybe
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we ought to do. So I’ve got to address that, first of all. That was another time,
another place than here. And the idea is Mr. Killebrew is entitled to have his case
that we’re here on right now stand on its own merits and not be infected by
something that happened in another proceeding, which the case was disposed of.
That being said, how can anybody avoid that they are thinking, “Well, he did
something similar to what this is about in some other context. That must be some
evidence that he’s guilty here today.” Everybody understand that’s human
nature? I wish it weren’t in this case. Normally in a criminal case you don’t
know anything about a defendant until and unless he’s found guilty if we get to
the punishment phase. This is different because it is a jurisdictional requirement
that makes it – what would otherwise be a misdemeanor makes it now a felony
because there has been a conviction previously.
Defense counsel asked the panel whether anyone would not be able to follow the judge’s
instructions to consider the prior conviction solely for jurisdictional purposes and not as evidence
of guilt, and no one on the panel responded that they would not be able to follow the law.
After voir dire, the court recessed the proceedings until the next day. The State changed
its mind about accepting appellant’s offer to stipulate, and the next day before trial started told
the trial court that based upon additional research the State should have agreed to accept
appellant’s stipulation. The State advised the trial court that it offered to accept appellant’s
stipulation and drafted a written stipulation, but that appellant refused, stating “he no longer
wishes to do that.” The State said it “still disagree[d] that [a stipulation] keeps the jury from ever
hearing that there’s a previous conviction[.]” Defense counsel responded:
And we like the position we’re in right now, Judge, given the nature of the
situation. It can’t be cured. There’s nothing you can do to improve our position
or to lessen it in any way, so we – I say this with all respect to everybody, and I
know you understand that. I think anything short of a mistrial, we might just as
well dance with who brung us, and that’s where we are right now.
The trial proceeded without a stipulation to the prior conviction for assault-family
violence, and the State proved the prior conviction by offering the judgment from the prior case
and the testimony of a fingerprint expert who matched appellant’s fingerprints to those of the
person convicted in the prior case. The trial court instructed the jury that it could not consider
the prior conviction unless it believed beyond a reasonable doubt that appellant committed the
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offense and then only for jurisdictional purposes and not as evidence of guilt of the charged
offense.
Analysis
Appellant argues on appeal that the trial court should have accepted his stipulation to
avoid having the jury determine whether he is guilty of the primary offense and also whether “he
is the same person who was previously convicted of a like crime.” He argues that “it is a hollow
jury instruction that directs the jury to limit its consideration of the prior enhancing conviction
only on the jurisdictional issue and not for whether he is guilty of the assault on trial.” He also
argues that this is the reason “lawyers continually find ways to minimize or even prevent proof to
the jury of the existence of the prior, while at the same time preserving establish [sic] felony
jurisdiction of their case.”
The State acknowledges that in the context of driving while intoxicated it is required to
accept a defendant’s offer to stipulate to prior DWI convictions alleged for felony jurisdiction.
See, e.g., Martin v. State, 200 S.W.3d 635, 638 (Tex. Crim. App. 2006); Tamez v. State, 11
S.W.3d 198, 202–03 (Tex. Crim. App. 2000). But it argues that neither the Texas Court of
Criminal Appeals nor this Court has extended those cases to the assault-family violence context,
and, even if those cases applied here, the trial court did not abuse its discretion by refusing
appellant’s stipulation because it was conditioned on preventing the jury from learning of the
prior conviction at all.
We do not need to decide whether Martin and Tamez apply in this context because
appellant waived any error caused by the refusal to accept his stipulation when he withdrew his
offer to stipulate and put the State to its proof. After voir dire and before anything else happened
at trial, the State offered to accept appellant’s stipulation. But appellant said the error could not
be cured “short of a mistrial” and decided to plead not guilty and “dance with who brung us.”
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Appellant’s decision appeared to be based on his belief that the stipulation would have prevented
the State from referring to the prior conviction at all during trial, and because the prior
conviction had already been mentioned during voir dire, the error could not be cured. But the
court of criminal appeals has stated that a stipulation to a prior conviction alleged for
jurisdictional purposes is evidence that is the proper subject of voir dire, opening statements,
guilt/innocence, and closing arguments. See Hollen v. State, 117 S.W.3d 798, 800–02 (Tex.
Crim. App. 2003). And at the time the State offered to accept appellant’s stipulation, the State
had not said anything in voir dire about the prior conviction that it could not have said about a
stipulation. See id. At that point, there was still time for appellant to avoid the introduction of
other evidence to prove the prior conviction, but instead he chose to withdraw his offer to
stipulate. Consequently, any trial court error by the initial refusal to allow appellant to stipulate
to the prior conviction was waived by appellant’s decision to forego the stipulation and require
the State to prove he was the person convicted in the prior assault-family violence case. Cf.
Dunn v. State, No. 08-02-00516-CR, 2004 WL 1858352, at *5–6 (Tex. App.—El Paso Aug. 19,
2004, pet. ref’d) (not designated for publication) (stating appellant cannot refuse to have
stipulation entered into evidence and then complain about its erroneous denial).
Additionally, the trial court instructed the jury that it could not consider the prior
conviction for assault-family violence unless it found beyond a reasonable doubt that appellant
committed the offense and then only for jurisdictional purposes and not as evidence of guilt of
the primary offense. Because there is no evidence indicating otherwise, we presume the jury
followed the trial court’s instructions. Thrift v. State, 176 S.W.3d 221, 223–24 (Tex. Crim. App.
2005).
We resolve issue one against appellant.
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ISSUE 2: LAY WITNESS OPINION TESTIMONY
In issue two, appellant argues that the trial court abused its discretion by allowing
Boitmann, a lay witness, to testify that in her opinion AK’s injuries were not the result of
reasonable parental discipline. Appellant argues that Boitmann’s opinion testimony was
inadmissible under evidence rule 701.
Background
As a justification defense, appellant argued that AK’s injuries were the result of
reasonable parental discipline and not against the law. See TEX. PENAL CODE ANN. § 9.61 (West
2011). On cross-examination, appellant asked the assistant principal, Boitmann, about physical
discipline, a parent’s right to use physical force, and corporal punishment. On redirect
examination, the State asked Boitmann whether she believed the bruises she saw on AK “would
have been a reasonable force from a parent or would that have been excessive[.]” Appellant
lodged multiple objections to this testimony, all of which the court overruled. Boitmann then
testified that based on the injuries she observed she thought the force used was excessive.
Analysis
Rule 701 states that if a witness is not testifying as an expert, the witness’s opinion must
be rationally based on the perception of the witness and helpful to a clear understanding of the
witness’s testimony or the determination of a fact in issue. TEX. R. EVID. 701. Appellant argues
that rule 701 “is designed to allow witnesses to the event to describe the event and then draw and
testify to logical opinions based on those event [sic].” He contends that because Boitmann did
not witness the assault, she did not have knowledge from which to form an opinion, and the jury
could have reached the same conclusion on its own without the benefit of Boitmann’s lay
opinion.
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But even if Boitmann’s opinion was inadmissible under rule 701, an issue we do not
decide, we conclude that any error was harmless. See TEX. R. APP. P. 44.2(b). We are to
disregard nonconstitutional error if it did not affect appellant’s substantial rights. Id.; Solomon v.
State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). A substantial right is “not affected by the
erroneous admission of evidence ‘if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or had but a slight effect.’” Id.
(quoting Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000)). Here, in addition to
Boitmann, the school nurse testified that the force used was excessive; and the officer who filed
the charge against appellant testified that even taking into account reasonable parental discipline,
he still thought a charge should be filed and did file the charge. And two of appellant’s
witnesses—his wife and his neighbor—testified on cross-examination similarly to Boitmann.
The State showed the pictures of AK’s bruises to appellant’s wife and asked her if “that [would]
be reasonable discipline of [AK].” She said, “No,” and the record states, “(Witness is crying.).”
And appellant’s neighbor agreed with the State that no child “deserve[d] to have those bruises
beaten onto them[.]” Although appellant objected to all of this testimony, on appeal he
complains only about Boitmann’s testimony. We conclude that any error in the admission of
Boitmann’s opinion was rendered harmless by the same, uncomplained-of testimony that came
in through other witnesses. See TEX. R. APP. P. 44.2(b); Solomon, 49 S.W.3d at 365.
We resolve issue two against appellant.
ERROR IN JUDGMENT
The record reflects that appellant pleaded true to a prior conviction for aggravated assault
alleged for punishment enhancement. The judgment states “N/A” under “Plea to 1st
Enhancement Paragraph” and “N/A” under “Findings on 1st Enhancement Paragraph.” We may
modify the judgment when we have the necessary information to do so. Bigley v. State, 865
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S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment to reflect that
appellant pleaded true to the prior conviction alleged for punishment enhancement and that the
court accepted his plea of true.
CONCLUSION
As modified, we affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
131511F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANTHONY SHANE KILLEBREW, On Appeal from the 416th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 416-81884-2012.
No. 05-13-01511-CR V. Opinion delivered by Justice Lang-Miers.
Justices Francis and Whitehill participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The “N/A” in the boxes for “Plea to 1st Enhancement Paragraph” and “Findings
on 1st Enhancement Paragraph” are deleted and “True” is inserted.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 16th day of March, 2015.
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