                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                                NO. 02-09-00334-CR


OGDEN JAMES                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


                                     ------------

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                     ------------

                                    OPINION

                                     ------------

                                  I. INTRODUCTION

      Appellant Ogden James appeals his conviction for assault–family violence.

In two issues, James argues that the trial court erred by admitting a police

officer‘s improper expert opinion testimony and by prohibiting him from

questioning the complainant about a prior incident in which she allegedly

attacked him. We will affirm.
                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Ogden James and Maggie Bryan had a dating relationship and lived

together. On March 20, 2009, Maggie was sitting on her porch when James,

who was mad that he had to move out, kicked her in her back. Maggie fell off the

porch and struggled to prevent James from hitting her.

      At about 10:15 p.m. that night, Officer Jamie Fletcher responded to a

domestic disturbance call at Maggie‘s residence. James was standing in the

front yard when Officer Fletcher arrived. He told Officer Fletcher that Maggie had

accused him of sleeping with another woman and had attacked him. Officer

Fletcher noticed that James had a couple of scratches on his face. She went

inside and found Maggie, who was ―kind of shaking‖ and had been crying.

Maggie told Officer Fletcher that James had assaulted her; she said James had

choked her, and she pointed out a small cut on her leg and a mark on one of her

arms where she said James had grabbed her.1 Officer Fletcher noticed that both

James and Maggie had been drinking and that Maggie was more intoxicated

than James, but that both were at the ―lower end‖ of the intoxication scale.

Concluding that both James and Maggie were ―aggressors‖ in the incident and

that neither one had injuries that were any worse than the other‘s injuries, Officer

Fletcher decided not to arrest either one but to try to separate them to prevent



      1
       Maggie agreed that she may have told the police or 911 that she had
scratched James‘s face when she was trying to keep him from hitting her.

                                         2
any further arguments or violence.2 James agreed to leave, and Officer Fletcher

advised him that ―if you come back and something happens and there‘s another

altercation, somebody is going to go to jail.‖ Maggie went to bed.

      Sometime later that night, James burst through Maggie‘s front door and

attacked her, hitting her multiple times on her face and head with his fist.

Terrified, Maggie tried to call 911 in the midst of the assault.

      At about 1:42 a.m., Officer Fletcher received a second call regarding

Maggie‘s residence and was the first officer to respond. She approached the

house and heard yelling, screaming, and ―banging around‖ from inside; it

sounded to Officer Fletcher like someone or something was getting thrown

around. After backup arrived, Officer Fletcher knocked on the door. Maggie

opened the door with James right behind her. Officer Fletcher observed that

Maggie was under the strain of some kind of trauma that she had just

experienced and that she looked different than she did earlier in the evening

when Officer Fletcher responded to the first call; her face was covered in blood,

her left eye was ―completely bruised and swollen shut,‖ she had blood coming

out of her eye, and she had a cut on her swollen face. Crying and very upset,

Maggie told Officer Fletcher, ―he did this to me,‖ which Officer Fletcher

interpreted to be in reference to James. Officer Fletcher called an ambulance

that transported Maggie to the hospital. Maggie‘s injuries included a one-inch

      2
       Officer Fletcher described the confrontation as ―mutual combat‖; ―they
both had fault.‖

                                          3
laceration under her left eye and multiple bruises and abrasions all over her body

and face.

      James told Officer Fletcher that Maggie had called or texted him to come

back to the house after he had left, that he was worried she would do something

to his property, that she attacked him when he returned, and that he had acted in

self-defense. Officer Fletcher examined James for new injuries, but she did not

notice that he had suffered any injuries that he did not have when she saw him

during the first call earlier in the evening. Officer Fletcher arrested James, and

her backup officer took him to jail.

      A jury convicted James of assault–family violence and sentenced him to

twenty years‘ confinement. James appeals.

                III. OBJECTIONS TO OFFICER FLETCHER’S TESTIMONY

      A.     Testimony About Maggie’s Condition

      In the first of two arguments James raises in his first issue, he contends

that the trial court abused its discretion by permitting Officer Fletcher to explain

that she called an ambulance for Maggie because Maggie had the ―crap‖ beat

out of her. The following exchange occurred at trial:

           Q. And tell me why you did that. Why did you call for an
      ambulance?

            A. Because she had just had the crap beat out of her and
      she needed immediate medical attention.

             [Defense Counsel]: Objection, Your Honor. She testified
      she thought she needed medical attention, but ―he beat the crap out
      of her‖ is speculation on her part. It‘s a characterization.

                                         4
             THE WITNESS:      I used to be an EMT, so I do have medical
      training.

            THE COURT:        What is your legal objection?

            [Defense Counsel]: Asking for a ruling on the objection. I
      believe it‘s a statement of opinion on her part, and also, it‘s
      something she‘s not qualified to testify to. She can state that she
      thought she needed medical attention; I don‘t have a problem with
      that. But she called the medic.

            THE COURT:        Overruled.

James argues that Officer Fletcher‘s testimony that Maggie ―had just had the

crap beat out of her and she needed immediate medical attention‖ (1) was an

improper causation or medical opinion because ―there were no qualifications

given by Officer Fletcher prior to her opinion that [James] beat the ‗crap‘ out of

the victim‖ and (2) amounted to a legal conclusion because it ―dealt with the

ultimate issue of whether [James] assaulted the alleged victim.‖

      We review a trial court‘s decision to admit or exclude evidence under an

abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.

Crim. App.), cert. denied, 549 U.S. 1056 (2006); Montgomery v. State, 810

S.W.2d 372, 379 (Tex. Crim. App. 1991) (op. on reh‘g). We reverse only when

the trial court‘s decision was so clearly wrong as to fall outside the zone of

reasonable disagreement. See Oprean v. State, 201 S.W.3d 724, 726 (Tex.

Crim. App. 2006). We uphold the trial court‘s ruling if it is reasonably supported

by the record and correct under any theory of law applicable to the case. See

Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

                                        5
      Rule 701 covers the testimony of a ―traditional‖ witness—one who

personally witnessed or participated in the events about which he is testifying.

Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006) (citing Osbourn v.

State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002)). It provides that such a

―witness‘ testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the witness‘ testimony or the

determination of a fact in issue.‖ Tex. R. Evid. 701; Ex parte White, 160 S.W.3d

46, 53 (Tex. Crim. App. 2004). The requirement that an opinion be rationally

based on the perception of the witness is composed of two parts: (1) the witness

must establish personal knowledge of the events from which his opinion is drawn

and (2) the opinion drawn must be rationally based on that knowledge. Fairow v.

State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997); Scott v. State, 222 S.W.3d

820, 828 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

      In this case, Officer Fletcher testified that she responded to two separate

disturbance calls at Maggie‘s residence. At the first call, Maggie told Officer

Fletcher that James had assaulted her; she said that James had choked her, and

she pointed out a small cut on her leg and a mark on one of her arms where she

said James had grabbed her. Officer Fletcher observed that Maggie was ―kind of

shaking‖ and had been crying.

      At the second call, before knocking on the front door, Officer Fletcher

heard yelling, screaming, and ―banging around‖ from inside Maggie‘s house.

                                       6
She testified that it sounded like someone or something was getting thrown

around. When Maggie opened the front door, Officer Fletcher observed that

Maggie looked different than she did at the first call—her face was covered in

blood, her left eye was ―completely bruised and swollen shut,‖ she had blood

coming out of her eye, and she had a cut on her swollen face. Maggie was also

crying and very upset, and she told Officer Fletcher, ―he did this to me.‖ Officer

Fletcher interpreted Maggie‘s statement to be in reference to James, who was

the only other person there.

      Officer Fletcher‘s opinion that Maggie ―had just had the crap beat out of

her‖ was thus based on and derived from her cumulative personal knowledge

that James and Maggie had a physical altercation earlier in the evening; that she

heard yelling, screaming, and ―banging around‖ from inside Maggie‘s house; that

Maggie answered the door with a swollen, bloody face and a swollen, shut eye

that she did not have at the first call; and that Maggie told her that James ―did

this.‖ See Fairow, 943 S.W.2d at 898. Based on her personal knowledge of

these facts, her opinion was also rational. See id. Accordingly, Officer Fletcher‘s

opinion that Maggie ―had just had the crap beat out of her‖ was rationally based

on events that she personally perceived during the calls at Maggie‘s residence

and, therefore, met rule 701‘s criteria that opinion testimony by a lay witness be

based on events that the witness personally perceived. See Tex. R. Evid. 701.




                                        7
      Regarding rule 701‘s other requirement, Officer Fletcher‘s opinion was

helpful to the determination of a fact in issue in the case: whether James

assaulted Maggie. See id.

      The dissent opines that Officer Fletcher ―had no personal knowledge of

what had caused Maggie‘s injuries‖ and that she ―was not stating an opinion.

She was stating, as a fact, her guess.‖ Dissenting and concurring op. at 4–5.

Besides ignoring the plethora of undisputed facts demonstrating that Officer

Fletcher‘s responsive lay opinion was rationally based on events that she

personally perceived during both visits to Maggie‘s residence, the dissent‘s

characterization of Officer Fletcher‘s testimony as merely a ―guess‖ necessarily

carries with it the unlikely factual (and unlikely logical) deduction that Maggie

inflicted her injuries upon herself since only she and James were present at her

residence—an absurd conclusion.

      We hold that the portion of Officer Fletcher‘s testimony that Maggie ―had

just had the crap beat out of her‖ was admissible as a lay opinion under rule of

evidence 701 and, therefore, that the trial court did not abuse its discretion by

admitting this objected-to testimony.

      To the extent James complains about the portion of Officer Fletcher‘s

testimony opining that Maggie ―needed immediate medical attention,‖ James

failed to preserve this issue for appellate review because he did not assert an

objection to this testimony; instead, he stated that Officer Fletcher ―can state that

she thought she needed medical attention; I don‘t have a problem with that.‖ See

                                         8
Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.

2002) (―We have consistently held that the failure to object in a timely and

specific manner during trial forfeits complaints about the admissibility of

evidence.‖).

      The dissent cites Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App.

2009), and disagrees that James failed to preserve this argument for appellate

review. Dissenting and concurring op. at 6. But Ford is inapposite because it

addresses the form an objection must take to preserve an issue concerning the

admission of evidence for appellate review. In this case, instead of asserting an

objection to Officer Fletcher‘s testimony that Maggie needed medical attention,

James did the opposite: he affirmed that he did not object to that portion of

Officer Fletcher‘s testimony. The dissent cites no case law—and would be hard

pressed to find any—holding that an affirmative statement that a defendant does

not object to the admission of evidence somehow simultaneously constitutes a

preserved-for-appellate-review objection to that same evidence.

      We overrule this part of James‘s first issue.

      B.       Testimony about James’s Self-Defense Assertion

      In the second argument of his first issue, James contends that the trial

court abused its discretion by permitting Officer Fletcher to opine on the

truthfulness of James‘s assertion at the second disturbance call that he acted in

self-defense. The relevant line of questioning proceeded as follows:



                                         9
      Q. And what else did he tell you about the -- the second
incident that had happened?

      ....

       A. Oh. He basically told me that as soon as he got to the
house, he got in there and she immediately began attacking him and
-- and fighting with him.

      Q.     And did he tell you that he defended himself?

      A.     He said it was all self-defense.

      Q. As someone who was standing there in that room with
these people, what was your reaction to him telling you it was self-
defense?

      [Defense Counsel]: Objection, relevance.

      [Prosecutor]: It‘s absolutely relevant, Judge. She was there.
She‘s witnessing this. She‘s entitled to explain to the jury what she
saw and if it made any sense to her.

      [Defense Counsel]: How is her reaction relevant to it?

      THE COURT: Sustained.

       Q. (BY [Prosecutor]) Ma’am, did the defendant’s claim of
self-defense make any sense to you based on what you saw?

      [Defense Counsel]: Objection, Your Honor. It‘s asking for an
opinion and a conclusion based on things that apparently aren‘t in
evidence at this time.

      THE COURT: Overruled.

      Q. (BY [Prosecutor]) Again, ma‘am, did his claim of self-
defense make any sense based on what you observed when you
arrived at the house?

      A.     No, sir.

      Q.     Why not? Explain that to me.

                                    10
            A. Because he had no new injuries on him and Maggie had
      a black eye, a cut nose, blood all over her face, bruises on her legs.
      And he did a heck of a job defending himself, if that was the case.
      [Emphasis added.]

      The State argues that James‘s objection ―was not specific enough to

inform the trial judge of what he was complaining.‖ Although James‘s objection

was not a model of clarity, we conclude that it was sufficiently specific to inform

the trial court that he objected to Officer Fletcher rendering an opinion as to the

―sense‖ or validity of James‘s assertion at the second disturbance call that he

acted in self-defense. See Tex. R. App. P. 33.1(a).

      The authority that James cites does not support his argument that the trial

court abused its discretion by permitting Officer Fletcher to answer the State‘s

question inquiring whether James‘s assertion of self-defense at the second

disturbance call made ―any sense . . . based on what [she] saw.‖ James cites

Black v. State for the contention that ―[a] witness is not allowed to give an opinion

as to the truthfulness of witnesses or the truthfulness of a claim of self-defense.‖

634 S.W.2d 356, 357–58 (Tex. App.—Dallas 1982, no pet.). Black relied in part

on the well-settled rule that a witness may not give an opinion as to whether

another witness is telling the truth, see Ayala v. State, 171 Tex. Crim. 687, 689,

352 S.W.2d 955, 956 (Tex. Crim. App. 1962), in arriving at its holding that an

expert‘s testimony concerning a complainant‘s propensity to tell the truth was

inadmissible. Black, 634 S.W.2d at 357. Neither the holding in Ayala nor the

holding in Black is applicable to this issue because Officer Fletcher did not offer


                                         11
her opinion regarding the truthfulness of another witness‘s testimony, nor did she

opine on Maggie‘s propensity to tell the truth. Black is, thus, inapposite.

      James also cites Taylor v. State for the contention that ―[a]n officer may not

testify that he or she did not believe the explanation the defendant gave at the

scene of the crime.‖ 774 S.W.2d 31, 34 (Tex. App.—Houston [14th Dist.] 1989,

pet. ref‘d). Taylor was convicted of burglary of a building. Id. at 32. At trial, the

State questioned a police officer about whether he thought appellant‘s reason for

being in the building (to get away from mosquitoes) was credible. Id. at 34. The

officer responded that he did not think appellant‘s reason was credible. Id. The

court of appeals concluded that Taylor‘s objection to the State‘s question should

have been sustained because ―[a]lthough the witness in the instant case did not

testify as to [Taylor‘s] guilt, he did testify as to his opinion of [Taylor‘s] culpable

mental state, which is an ultimate fact question for the jury‘s determination.‖ 3 Id.

As the State points out, however, testimony in the form of an opinion or inference

otherwise admissible is not objectionable now because it embraces an ultimate

issue to be decided by the trier of fact. See Tex. R. Evid. 704. Officer Fletcher

also did not offer an opinion as to James‘s mental state. Taylor is, therefore,

inapposite.

      As with James‘s first argument, rule of evidence 701 governs this issue.

The complained-of question specifically inquired about the sense of James‘s self-

      3
         The Taylor court held that the error was harmless. Taylor, 774 S.W.2d at
34–35.

                                          12
defense assertion in light of Officer Fletcher‘s observations. The State did not

ask Officer Fletcher to opine on the truthfulness of another witness‘s testimony,

to opine on the truthfulness of James‘s assertion of self-defense, to opine

whether James was guilty, or to even opine on James‘s credibility, thus possibly

encroaching upon the jury‘s province to make credibility determinations. Instead,

the question inquired about the logical force of James‘s assertion in light of what

Officer Fletcher had personally observed. Officer Fletcher responsively opined

that the assertion did not make sense because she observed at the second call

that James had no new injuries but Maggie—unlike at the first call—had a

beaten, bloody, swollen face. The trial court could have reasonably concluded

that Officer Fletcher‘s testimony—which was also relevant to show the contrast

between Maggie‘s condition at the first disturbance call and her condition at the

second call—was admissible under rule 701 because it was rationally based on

events that she perceived, was relevant to whether James had assaulted

Maggie, and did not expressly question James‘s or another witness‘s truthfulness

or credibility. See Tex. R. Evid. 701. Therefore, we hold that the trial court did

not abuse its discretion by permitting Officer Fletcher to so testify.

      Even if the trial court abused its discretion by permitting Officer Fletcher to

testify that James‘s assertion of self-defense made no sense to her, the error

was harmless. Generally, the erroneous admission or exclusion of evidence is

nonconstitutional error governed by rule 44.2(b) if the trial court‘s ruling merely

offends the rules of evidence. See Solomon v. State, 49 S.W.3d 356, 365 (Tex.

                                          13
Crim. App. 2001). Under rule 44.2(b), we are to disregard the error if it did not

affect appellant‘s substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State,

983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh‘g), cert. denied, 526

U.S. 1070 (1999); Coggeshall v. State, 961 S.W.2d 639, 642–43 (Tex. App.—

Fort Worth 1998, pet. ref‘d). A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury‘s verdict. King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United

States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961

S.W.2d at 643. Conversely, an error does not affect a substantial right if we have

―fair assurance that the error did not influence the jury, or had but a slight effect.‖

Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998). In making this determination, we review the record as a whole,

including any testimony or physical            evidence admitted for the jury‘s

consideration, the nature of the evidence supporting the verdict, and the

character of the alleged error and how it might be considered in connection with

other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002). We may also consider the jury instructions, the State‘s theory and

any defensive theories, whether the State emphasized the error, closing

arguments, and even voir dire, if applicable. Id. at 355–56.

      We have reviewed the record as a whole. Notwithstanding the evidence of

James‘s guilt, even in the absence of Officer Fletcher‘s complained-of testimony,

the jury could have reasonably concluded—as it implicitly did by rejecting his

                                          14
claim of self-defense—that James‘s assertion of self-defense made no sense

based on other evidence admitted without objection.            For example, Maggie

testified that after James burst through the front door of her house, he told her,

―[Y]ou bitch, I‘m going to show you what real torture is all about; I‘m going to do

things to you that you can‘t even dream in your own nightmares.‖ Maggie also

testified that she spoke with James at some point after the incidents and that

James wanted her to tell the police a different version of the facts—that she was

elbowed when some kids from next door jumped him. Further, Ray Harder, a

paramedic who responded to both the first and second calls at Maggie‘s

residence, testified like Officer Fletcher that compared to the first visit, Maggie

had ―observable injuries the second time.‖         Consequently, the admission of

Officer Fletcher‘s testimony that James‘s assertion of self-defense did not make

sense did not affect James‘s substantial rights; we have a fair assurance that the

admission either did not influence the jury or that it had but a slight effect. See

Tex. R. App. P. 44.2(b); Motilla, 78 S.W.3d at 355–57. Thus, assuming that the

trial court abused its discretion, which it did not, the error, if any, was harmless.

                      IV. MAGGIE’S ALLEGED PRIOR CONDUCT

      In his second issue, James argues that the trial court abused its discretion

by prohibiting him from questioning Maggie about a prior incident in which she

allegedly attacked him when they lived at a different address. The following

exchange occurred during James‘s cross-examination of Maggie:



                                          15
             Q. And did you and [James] ever live at any other address
      other than the Bolivar Street address?

              A.     110 Owens.

             Q. Owens Street? While you and Mr. James lived at the
      Owens Street address, do you recall whether or not Mr. James ever
      called the police out there?

            [Prosecutor]: Your Honor, at this point in time, I‘d object to the
      relevance of that.
            May we approach, Your Honor?

              THE COURT: You may.
              (At the bench outside the hearing of the jury)

            [Defense Counsel]: Your Honor, it‘s my understanding that
      the police went out to the Owens Street address and that Mr. James
      --

              THE COURT: How is that relevant?

              ....

             [Defense Counsel]: It‘s my understanding that she attacked
      him with a box cutter and cut the bed up. She may deny it, but I
      think I have the right to ask her.

              [Prosecutor]: I think it‘s a specific instance of conduct --

              THE COURT: I sustain the objection.

James contends that ―[t]his evidence was crucial for [his] contention that he acted

in self-defense. . . . Without this testimony, [his] argument that he acted in self-

defense was not believed by the jury.‖

      Rule 404(b) provides for the admissibility of specific bad acts only to the

extent that they are relevant for a purpose other than to show character

conformity.    Tex. R. Evid. 404(b).      Because a complainant‘s unambiguous,

                                          16
violent, or aggressive act needs no explaining, evidence of the complainant‘s

extraneous conducted admitted in conjunction with his unambiguous act would

have no relevance apart from its tendency to prove the victim‘s character

conformity and, thus, would be inadmissible. London v. State, 325 S.W.3d 197,

205–06 (Tex. App.—Dallas 2008, pet. ref‘d); Mai v. State, 189 S.W.3d 316, 321

(Tex. App.—Fort Worth 2006, pet. ref‘d); see Thompson v. State, 659 S.W.2d

649, 653–54 (Tex. Crim. App. 1983) (reasoning that when complainant‘s conduct

was ambiguously aggressive, prior, specific acts of violence were admissible so

far as they tended to explain complainant‘s conduct). Therefore, two conditions

must exist before a complainant‘s extraneous act will be admissible to support a

claim of self-defense: (1) some ambiguous or uncertain evidence of a violent or

aggressive act by the victim must exist that tends to show the victim was the first

aggressor; and (2) the proffered evidence must tend to dispel the ambiguity or

explain the victim‘s conduct. Mai, 189 S.W.3d at 321; Reyna v. State, 99 S.W.3d

344, 347 (Tex. App.—Fort Worth 2003, pet. ref‘d) (citing Torres v. State, 71

S.W.3d 758, 762 (Tex. Crim. App. 2002)).

      James asserted that he acted in self-defense because Maggie attacked

him when he returned to her house.           Maggie‘s conduct is unambiguous.

Consequently, neither the first nor second conditions above are met. See Mai,

189 S.W.3d at 321; Reyna, 99 S.W.3d at 347. The testimony that James sought

to proffer from Maggie about a prior incident in which she allegedly attacked him

does nothing more than show character conformity. The trial court did not abuse

                                        17
its discretion by refusing to admit character evidence. See Tex. R. Evid. 404(b).

We overrule James‘s second issue.

                                 V. CONCLUSION

      Having overruled all of James‘s issues, we affirm the trial court‘s judgment.



                                             BILL MEIER
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DAUPHINOT, J. filed a dissenting and concurring opinion.

PUBLISH

DELIVERED: February 10, 2011




                                        18
                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-09-00334-CR


OGDEN JAMES                                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


                                   ------------

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                   ------------

               DISSENTING AND CONCURRING OPINION
                                    ----------

     I write separately because I cannot agree with the majority that Officer

Fletcher‘s opinion that Maggie ―had just had the crap beat out of her‖ was

properly admitted as ―based on and derived from her cumulative personal

knowledge.‖1   The majority‘s statement that there is a ―plethora,‖ that is, an




     1
      Majority op. at 6.
―extreme excess[,] ‗an embarrassment,‘‖2 of ―undisputed facts demonstrating that

Officer Fletcher‘s responsive lay opinion was rationally based on events that she

personally perceived during both visits to Maggie‘s residence‖3 is both confusing

and, perhaps, a bit hyperbolic. I think the majority is suggesting that because

they conclude that the evidence is sufficient to support conviction, we impute

knowledge of all the evidence in the case to Officer Fletcher at the moment she

decided to call for an ambulance. Respectfully, if we examine, without emotion,

the evidence objectively known to Officer Fletcher at that moment, we see that

   1. Officer Fletcher was not present when any assault occurred and could not,
      therefore, have had any personal knowledge of what occurred because it
      did not occur in her presence.

   2. The first time Officer Fletcher arrived at the house in question, Appellant
      was standing outside, and Maggie was inside sitting on the couch or a
      chair, intoxicated and upset. Officer Fletcher thought that Maggie had
      been crying. Appellant said that Maggie was intoxicated and accusing him
      of sleeping with the girl who lived next door. Officer Fletcher detected
      alcohol on both Appellant and Maggie, but Maggie was the more
      intoxicated. Appellant was calm and had a couple of scratches on his
      face. Maggie‘s injuries were not apparent to Officer Fletcher until Maggie
      pointed them out. Officer Fletcher saw no severe injuries on either person.
      Although Maggie claimed that Appellant had choked her, Officer Fletcher
      observed nothing on Maggie‘s neck. Officer Fletcher saw a small cut on
      Maggie‘s leg and a small mark of a finger or thumb on one arm. It
      appeared to Officer Fletcher that both were aggressors. It appeared to be
      mutual combat, and both were at fault.

   3. The second time that Officer Fletcher was called to the house, she first
      heard a sound like someone or something being thrown around inside the

      2
       Plethora, http://dictionary.sensagent.com/plethora/en-en/ (last checked
Jan. 28, 2011).
      3
       Majority op. at 7.

                                       2
      house. She also heard yelling and screaming. She testified that she just
      had ―that gut feeling that something [was] going to—something [was] not
      right.‖ Maggie opened the door, and Appellant was right behind her.
      Officer Fletcher described Maggie‘s face as ―covered in blood‖; ―her left
      eye was completely bruised and swollen shut‖; she ―had blood coming out
      her eye down her cheeks‖; ―she had a cut here‖; and ―some of her teeth
      were loose.‖ Maggie was ―bawling‖ and ―holding her face.‖ Officer
      Fletcher testified, ―[Maggie] said something along the lines, he did this to
      me, you know. I told you—you know, I told you the first time. And, you
      know, she was just very upset.‖

      Looking at the record objectively rather than emotionally, the ―plethora of

undisputed facts‖ regarding the cause of Maggie‘s black eye and bloody face

being that ―she had just had the crap beat out of her‖ by Appellant is that

(1) Maggie was drunk and angry; (2) Officer Fletcher saw no one in the house

other than Appellant and Maggie (although there is no evidence that Officer

Fletcher searched the house); and (3) Maggie said, ―[S]omething along the lines,

he did this to me.‖    Despite what the majority refers to as the ―plethora of

undisputed facts,‖ we are still left with very little objective evidence to form the

basis of Officer Fletcher‘s opinion of the cause of the injuries when she called for

the ambulance.

      The majority speculates that only two possible explanations for Maggie‘s

injuries exist: either she harmed herself, or Appellant harmed her. Respectfully,

the majority falls into the same trap as Officer Fletcher in leaping to a

determination of credibility instead of relying on the record.     Officer Fletcher

heard sounds of someone or something ―getting thrown around‖ inside the

house, but she could not see what was happening.           Did the mutual combat


                                         3
continue, causing something to fall on Maggie? Was she pushed into something

that caused her injuries?     Was something thrown that hit her?        Did she fall

against something in her intoxicated and angry state? I do not know, the majority

does not know, and Officer Fletcher did not know at the time she called for the

ambulance.     She had no personal knowledge of what had caused Maggie‘s

injuries.

       The cause of Maggie‘s injuries was an element of the offense that the

State was obligated to prove beyond a reasonable doubt.           Officer Fletcher‘s

statement was nothing more than her personal opinion regarding that element of

proof, but it was not based on her personal knowledge. It was nothing more than

a guess, based on what she ―interpreted Maggie‘s statement‖ to mean, and her

conclusion that someone she did not know was a truth-teller. Moreover, her

statement was not responsive to the question. She was asked why she called for

an ambulance, not what caused Maggie‘s injuries.

       The majority relies on Fairow v. State4 in holding that Officer Fletcher was

allowed to offer a lay opinion based on her personal knowledge under rule 701. 5

But the Fairow court explained that

       [w]hen conducting a Rule 701 evaluation, the trial court must decide
       (1) whether the opinion is rationally based on perceptions of the witness
       and (2) whether it is helpful to a clear understanding of the witness‘s
       testimony or to determination of a fact in issue. The initial requirement that

       4
        943 S.W.2d 895 (Tex. Crim. App. 1997).
       5
        See Tex. R. Evid. 701.

                                          4
      an opinion be rationally based on the perceptions of the witness is itself
      composed of two parts. First, the witness must establish personal
      knowledge of the events from which his opinion is drawn and, second, the
      opinion drawn must be rationally based on that knowledge.6

      Officer Fletcher, however, was not stating an opinion. She was stating, as

a fact, her guess. She had no personal knowledge of the cause of Maggie‘s

injuries, only speculation. She did not state that she was expressing an opinion,

but, rather, couched her guess as a fact. And that fact was an essential element

of the offense about which she had no personal knowledge.

      Nor can I agree that Appellant did not object to the testimony. The Texas

Court of Criminal Appeals has explained that

      [t]o properly preserve an issue concerning the admission of evidence
      for appeal, ―a party's objection must inform the trial court why or on
      what basis the otherwise admissible evidence should be excluded.‖
      However, a party need not spout ―magic words‖ or recite a specific
      statute to make a valid objection. References to a rule, statute, or
      specific case help to clarify an objection that might otherwise be
      obscure, but an objection is not defective merely because it does not
      cite a rule, statute, or specific case. As this Court stated in Lankston
      v. State,

            Straightforward communication in plain English will
            always suffice . . . . (A)ll a party has to do to avoid the
            forfeiture of a complaint on appeal is to let the trial judge
            know what he wants, why he thinks himself entitled to it,
            and to do so clearly enough for the judge to understand
            him at a time when the trial court is in a proper position
            to do something about it.

              The objection must merely be sufficiently clear to provide the
      trial judge and opposing counsel an opportunity to address and, if
      necessary, correct the purported error. In making this determination,

      6
       Fairow, 943 S.W.2d at 898 (citations and footnote omitted).

                                         5
      Lankston states that an appellate court should consider the context
      in which the complaint was made and the parties‘ understanding of
      the complaint at the time.7

      Appellant‘s objection was precisely that Officer Fletcher was couching an

opinion as a fact.    Any trial judge would understand his objection:        Officer

Fletcher is offering a nonresponsive statement of fact when she was qualified

only to admit that she was expressing an opinion that Maggie needed medical

attention, not to state as a fact her guess as to the cause of the injuries when she

was not asked what she guessed caused the injuries.

      I do not understand the majority‘s statement that Ford v. State is

inapposite. Officer Fletcher was qualified to testify that in her opinion, Maggie

needed medical attention, Appellant conceded that Officer Fletcher was qualified

to express that opinion and to make that determination on the occasion in

question, and Appellant did not object to that testimony.        However, Officer

Fletcher was not qualified to state that she knew the cause of Maggie‘s injuries at

the time she called the ambulance, Appellant did object to the statement that

―[Maggie] had just had the crap beat out of her,‖ and that objection was

improperly overruled by a trial court who understood the objection.         Ford is

directly on point as authority that Appellant properly objected to the admission of

Officer Fletcher‘s testimony about the causation of Maggie‘s injuries.



      7
       Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (citations
omitted).

                                         6
      Maggie, however, testified at trial. She testified that Appellant had caused

her injuries.   The improper admission of Officer Fletcher‘s testimony was

therefore harmless.8 For this reason only, I concur in the majority‘s result. But I

cannot agree that this court should give either the State or the defense the green

light to offer such speculation under the guise of rule 701 lay opinion testimony. I

therefore must respectfully dissent from this portion of the majority opinion.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: February 10, 2011




      8
       See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

                                         7
