                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-18-00151-CR


LANE HUGH BROWN                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1440468D

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Lane Hugh Brown pleaded guilty to manslaughter, and a jury

assessed punishment of ten years’ confinement. In two issues, Brown argues

that the trial court erred by excluding punishment evidence (1) of the victim’s

postmortem toxicology report and (2) that the victim had been seen in



      1
      See Tex. R. App. P. 47.4.
possession of a marijuana pipe on the night before her death. Brown argues that

both items of evidence were relevant to Brown’s motive for engaging in the

behavior that led to the victim’s death. We will affirm.

                                  II. BACKGROUND

       On June 13, 2015, Brown was driving a motorcycle on U.S. Highway 81 in

Wise County.      The victim, Meagan Hays, was riding on the back of the

motorcycle. A Department of Public Safety trooper observed Brown speeding

and pulled him over.

       In the video from the trooper’s dashboard camera, as soon as Brown

brought the motorcycle to a stop, Hays appears to unbuckle her helmet and start

to remove it. But just a few seconds after stopping, Brown sped back into traffic.

In the video, Brown’s sudden action appears to surprise Hays, who releases her

grip on the helmet and grabs Brown’s shoulder to maintain her balance.

       A high-speed pursuit ensued. Brown left the highway for a two-lane road,

ran a red light, and reached speeds that DPS troopers estimated to be in excess

of 100 miles per hour. Brown then crashed into the back of a car that had pulled

to the shoulder to yield to the sirens and lights of the trooper’s approaching patrol

car.

       The collision threw Hays ninety-six feet, and she died at the scene. Brown

sustained severe injuries. He testified that he had no memory of the accident

and the events leading up to it. At the time of the accident, Hays was wearing a

backpack containing Brown’s high-school diploma and birth certificate, two cell


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phones (one of which belonged to Hays), a bag of what appeared to be

marijuana, and a pink pipe containing what appeared to be marijuana residue.

      A grand jury indicted Brown for murder; the indictment included a deadly-

weapon notice. Brown entered an open plea of guilty to manslaughter and a

deadly-weapon finding.

      At the jury trial on punishment, the State’s theory was that Hays was an

unwilling participant in Brown’s flight from police. The State presented evidence

that Hays did not like motorcycles, did not like going fast, and was not a thrill

seeker. Two DPS troopers opined that Hays did not expect Brown to flee from

the initial traffic stop because the dashcam video appears to show her beginning

to remove her helmet as soon as the motorcycle came to a stop.

      Brown’s theory was that the marijuana and pipe belonged to Hays and that

Hays urged him to flee from the initial traffic stop. Brown presented evidence

that he and Hays attended a party at Brown’s residence the night before the

crash. Hays declined another guest’s offer of a ride home, choosing instead to

let Brown drive her home on his motorcycle.

      Brown offered a postmortem toxicology report showing marijuana in Hays’s

system and testimony that Hays was seen at the party with the marijuana pipe.

The State objected, and the trial court excluded the evidence as irrelevant.

      The jury assessed punishment at ten years’ confinement. The trial court

rendered judgment accordingly, and this appeal followed.




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                                 III. DISCUSSION

      In two issues, Brown argues the trial court erred by excluding his proffered

evidence about the toxicology report and Hays’s possessing the marijuana pipe

at the party the night before the crash. Because Brown’s issues rely on similar

facts and identical law, we will address them together.

      A.    Preservation of Error

      The State argues that Brown failed to preserve his complaint for review

because his argument on appeal as to why the evidence is admissible does not

comport with his argument in the trial court. We disagree.

      A complaint on appeal must comport with the complaint made in the trial

court or the error is forfeited. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim.

App. 2009). In the trial court, Brown argued that the evidence about the pipe and

the marijuana in Hays’s system was relevant because it tended to show that she

owned the pipe and the marijuana and therefore not only knew that Brown was

attempting to evade apprehension but encouraged the attempt.          On appeal,

Brown argues that “[i]f the jurors had known that the marijuana and the marijuana

pipe in the backpack probably belonged to [Hays], they would have viewed

[Brown’s] motive and actions more leniently” and that “evidence tending to show

that [Hays] had her own motive for avoiding an encounter with police was

certainly relevant to the jury’s assessment of [Brown’s] degree of culpability for

her death.” The gist of Brown’s argument both at trial and on appeal is that the

evidence is relevant as to why Brown acted the way he did.         Therefore, his


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argument on appeal comports with his argument at trial. See id. We hold that

Brown preserved his complaint for our review. See Tex. R. App. P. 33.1(a)(1).

      B.    Standard of Review

      We review a trial court’s evidentiary rulings under an abuse-of-discretion

standard. See Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016). A

trial judge's decision is an abuse of discretion only when it falls outside the zone

of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.

Crim. App. 2007). An evidentiary ruling will be upheld if it is correct on any

theory of law applicable to the case. Gonzalez v. State, 195 S.W.3d 114, 126

(Tex. Crim. App.), cert. denied, 549 U.S. 1024 (2006).

      C.    The Trial Court Did Not Abuse Its Discretion

      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.” Montgomery v. State, 810

S.W.2d 372, 386 (Tex. Crim. App. 1991) (op. on reh’g) (citing Tex. R. Evid. 401).

At the punishment phase of trial, “evidence may be offered by the state and the

defendant as to any matter the court deems relevant to sentencing.” Tex. Code

Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2017).

      The court of criminal appeals has noted that “admissibility of evidence at

the punishment phase of a non-capital felony offense is a function of policy rather

than relevance.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App.

2006) (citing Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988)


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(plurality op. on reh’g)). This is true because “by and large there are no discreet

factual issues at the punishment stage. There are simply no distinct ‘facts . . . of

consequence’ that proffered evidence can be said to make more or less likely to

exist.” Id. (quoting Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App.

1990)).

      Apart from Article 37.07, § 3(a), “the Legislature has not set a coherent

policy to guide courts in discerning what evidence is appropriate to the

punishment deliberation.” Miller-El, 782 S.W.2d at 896. Moving to fill that policy

void, the court of criminal appeals has declared that “subject to limitations

imposed by [art. 37.07, § 3(a)], evidence of ‘the circumstances of the offense

itself or . . . the defendant himself’ will be admissible at the punishment phase.”

Id. (quoting Murphy, 777 S.W.2d at 63). Thus, determining what is relevant at

the punishment phase of a non-capital felony offense is “a question of what is

helpful to the jury in determining the appropriate sentence for a particular

defendant in a particular case.” Rodriguez, 203 S.W.3d at 842 (Tex. Crim. App.

2006) (citing Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)).

      Brown argues that the excluded evidence was relevant to show that Hays,

not Brown, owned the marijuana and the pipe. Brown further argues that the

excluded evidence suggests that his attempt to evade apprehension “may have

been motivated by the more chivalrous—though admittedly misguided—notion of

trying to protect [Hays] rather than merely himself.” Brown speculates that Hays

might have said something to him about the marijuana and pipe, which prompted


                                         6
Brown’s attempt to flee. Finally, Brown suggests that the excluded evidence

shows that Hays had a motive for evading police and therefore shared culpability

for her own death:

      [E]vidence tending to show that [Hays] had her own motive for
      avoiding an encounter with police was certainly relevant to the jury’s
      assessment of [Brown’s] degree of culpability for her death—
      especially in light of the State’s contention that [Hays] was entirely
      innocent of any wrongdoing and therefore that the whole weight of
      responsibility for her death must fall on [Brown].

      We disagree with Brown’s relevancy arguments for three reasons. First,

and most importantly, Brown’s entire argument hinges on the premise that he

fled police to avoid discovery of the marijuana and pipe.     But nothing in the

record supports this premise.     There is no evidence that Brown knew the

contraband was in the backpack. Assuming for the sake of argument that he did

know, there is no evidence that he fled to prevent police from discovering the

marijuana and pipe.    Brown might have fled for some completely unrelated

reason. The only person who knew Brown’s motive—Brown himself—cannot

remember fleeing from the police, much less his motive for doing so. Thus,

whether the marijuana and pipe had anything to do with Brown’s flight and

Hays’s death is nothing more than speculation.

      Second, even assuming for the sake of argument that a reasonable juror

could conclude that Brown’s motive for fleeing from police was to prevent the

marijuana’s discovery, whether Brown or Hays owned the marijuana is irrelevant.




                                        7
Brown’s motive and his culpability remain the same regardless of who actually

owned the marijuana and pipe.

      Third, even if Hays did own the marijuana and pipe, her ownership does

not shift culpability for the high-speed flight and Hays’s death from Brown to

Hays. Brown was in sole control of the motorcycle. Brown chose to lead police

on a high-speed pursuit.     And Brown crashed the motorcycle, killing Hays.

Brown speculates that Hays might have communicated to him her desire to

evade police, but nothing in the record supports this speculation.      Thus, we

disagree with Brown’s assertion that “evidence tending to show that [Hays] had

her own motive for avoiding an encounter with police was certainly relevant to the

jury’s assessment of [Brown’s] degree of culpability for her death.” There is no

evidence Hays communicated any such motive to Brown or that he was acting on

Hays’s supposed motive when he fled from police.

      In summary, Brown’s attempt to show that the excluded evidence would be

helpful to the jury in assessing punishment is based on nothing more than

speculation—speculation that Brown knew the marijuana and pipe were in the

backpack, speculation that Brown fled from police because he knew the

marijuana and pipe were in the backpack, and speculation that Hays

communicated to Brown a desire to flee from police because of the marijuana

and pipe in the backpack.     We cannot say that the trial court’s decision to

exclude Hays’s toxicology report and testimony that Hays was seen with the

marijuana pipe falls outside the zone of reasonable disagreement.            See


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Winegarner, 235 S.W.3d at 790. We therefore hold that the trial court did not

abuse its discretion by excluding the evidence. See Jenkins, 493 S.W.3d at 607.

We overrule both of Brown’s issues.

                               IV. CONCLUSION

      Having overruled both of Brown’s issues, we affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).




                                                /s/ Bill Meier
                                                BILL MEIER
                                                JUSTICE

PANEL: MEIER, KERR, and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 7, 2018




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