Russell Lee v. State

Lee v. State IN THE TENTH COURT OF APPEALS No. 10-91-207-CR      RUSSELL LEE,                                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                                               Appellee From the 54th District Court McLennan County, Texas Trial Court # 91-467-C                                                                                                     CONCURRING OPINION                                                                                                           I disagree with the disposition of point one. I cannot find in the testimony quoted by the majority evidence from which the prosecutor could draw an inference that Lee sold "crack cocaine" on other occasions. The testimony shows that Lee is "street smart," i.e., that he knows what a "twenty" is. It shows that he "removed from a baggie, a rock like substance" and delivered it to the officer. It does not infer that he committed other offenses on other occasions.       Further, conceding for the sake of argument that the testimony does infer that he committed other offenses, "[a] prosecutor is strictly prohibited from making references to extraneous offenses for which the accused is not currently on trial." See Munoz v. State, 803 S.W.2d 755, 756 (Tex. App.—Houston [14th Dist.]), pet. ref'd per curiam, 809 S.W.2d 501 (Tex. Crim. App. 1991) (citing Melton v. State, 713 S.W.2d 107 (Tex. Crim. App. 1986)). "[I]t is error for the State to make statements that would lead the jury to speculate on extraneous offenses or other matters that are not in evidence." See Hamilton v. State, 818 S.W.2d 880, 882 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (citing Everett v. State, 707 S.W.2d 638 (Tex. Crim. App. 1986)).       Still further, bearing in mind that the objected-to argument occurred during the punishment phase, the effect of approving the argument is to allow the State to do indirectly what we will not allow them to do directly—introduce evidence of unadjudicated offenses during the punishment phase. See Blackwell v. State, 818 S.W.2d 134, 141 (Tex. App.—Waco 1991, pet. filed).       For each of these reasons, I would hold that the court erred in overruling Lee's objection to the argument.       I would, however, hold that, beyond a reasonable doubt, the error did not contribute to Lee's punishment. See Tex. R. App. P. 81(b)(2). Therefore, I concur in the result reached by the majority.                                                                                   BILL VANCE                                                                                  Justice Opinion delivered and filed September 30, 1992 Do not publish /b> From the 220th District Court Bosque County, Texas Trial Court # 02-09-13,541 BCCR  MEMORANDUM Opinion           A jury convicted Richard Allen Lynch of injury to a child and sentenced him to thirty-five years’ imprisonment. Lynch contends in a single issue that the court abused its discretion by admitting the testimony of his brother James regarding statements made by their mother Janie during a conversation between Janie, James, and Lynch himself. Because the statements were admissible as adoptive admissions, we will affirm.          Lynch was convicted of injuring his three-month-old son. His brother James was out of town when the injuries were inflicted and the son was hospitalized in Temple. When James returned, he joined the family at a motel in Temple. Janie and Lynch asked James to step out on the balcony to talk with them about the situation.          Janie told James that Lynch “had beaten the baby” and that they “needed to take [Lynch] to a psych ward [because] he needed some help.” In response, Lynch told James that “he f---ed up and started crying.” James testified that they tried to have Lynch admitted at a psychiatric hospital in Killeen, but Lynch was denied admission after an evaluation.          Lynch characterizes the conversation between Janie, James, and himself as containing three distinct statements: (1) that he had “beaten” his son, (2) that Janie wanted to hospitalize him, and (3) that Janie “would try to get him some help.” He contends that it is unclear which, if any, of these statements he adopted by acquiescence. He notes that he “was surely traumatized after discovering the extent of the child’s injuries, presumably not knowing what had caused it.” He refers to the statements he gave the police, in which he maintained that he had accidentally dropped his son the day before he was hospitalized. Lynch contends that Janie’s statement does not specify that he had directly spoken with her about his son’s injuries. He suggests that his comment to James could be just as easily construed as an expression of remorse for having accidentally dropped his son.          Rule of Evidence 801(e)(2) excludes from the hearsay rule certain statements made by a party-opponent and offered against him at trial. Included within this definition is “a statement of which the party has manifested an adoption or belief in its truth.” Tex. R. Evid. 801(e)(2)(B). Such adoption can be manifested by actions, responses, or acquiescence. Legate v. State, 52 S.W.3d 797, 802 (Tex. App.—San Antonio 2001, pet. ref’d); see also Paredes v. State, 129 S.W.3d 530, 533-35 (Tex. Crim. App. 2004) (manifestation by response); Alvarado v. State, 912 S.W.2d 199, 214-15 (Tex. Crim. App. 1995) (manifestation by silent acquiescence).          We review a trial court’s ruling on the admissibility of evidence under an abuse-of-discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). If the court’s ruling is correct under any theory of law applicable to the case, we will uphold it. Id.          Janie told James that Lynch “had beaten the baby.” Lynch did not attempt to refute her statement. Although Lynch is correct that his response could be interpreted in more than one way, we cannot conclude that the court abused its discretion by implicitly concluding that Lynch’s response constituted an adoption by silent acquiescence of Janie’s statement. See Alvarado, 912 S.W.2d at 214-15; Flores v. State, 84 S.W.2d 675, 685 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).          Accordingly, we overrule Lynch’s sole issue and affirm the judgment.  FELIPE REYNA Justice  Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed December 15, 2004 Do not publish [CRPM] Â