                                 NO. 07-10-00033-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                SEPTEMBER 23, 2010


                       DON DOUGLAS MCDANIEL, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 60591-C; HONORABLE ANA ESTEVEZ, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK JJ.


                               MEMORANDUM OPINION

      Appellant, Don Douglas McDaniel, was convicted of failure to comply with sex

offender registration requirements.1 Appellant’s indictment contained two prior felony

convictions alleged for punishment enhancement purposes.2 A jury convicted appellant

of failure to register and found that the punishment enhancement paragraphs were true.

Appellant was sentenced to 75 years confinement in the Institutional Division of the

Texas Department of Criminal Justice (ID-TDCJ). Appellant’s single issue on appeal is

      1
          See TEX. CODE CRIM. PROC. ANN. art. 62.102 (Vernon 2006).
      2
          See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2009).
that the trial court committed reversible error when it denied his motion for mistrial.

Disagreeing with appellant, we will affirm.


                              Factual and Procedural Background


       Because appellant does not contest the sufficiency of the evidence to sustain the

judgment of the trial court, we will only recite those facts necessary for determination of

the issue before us. Appellant was indicted during the July term of 2009 for the instant

offense.3 Subsequently, on October 5, 2009, the trial court conducted a hearing on pre-

trial matters. One of the motions filed by appellant was a motion in limine. During the

discussion of this motion, the following colloquy took place:


       Trial Counsel (TC): Yes, we have a Motion in Limine to — on the State’s
       use of prior convictions and extraneous offenses. And we’ve asked in the
       guilt-innocence portion of the trial, before they -- their witnesses or they
       ask questions of the witnesses regarding any of these that may have
       occurred that we approach the Bench and possibly have a hearing out of
       the presence of the jury.


       State’s Counsel (SC): Judge, I don’t have any problem in regard to the
       enhancement paragraphs in the indictment. Obviously those are not
       relevant in guilt-innocence phase of the trial.


       But as part of the jurisdictional paragraphs, the paragraphs that the jury is
       going to have to make a decision on, one of the elements of the offense is
       to show that he is required to register as a sex offender based upon a
       reportable conviction for indecency with a child by sexual contact. So, that


       3
         The charging portion of the indictment contained two prior convictions. The first
alleged appellant had been previously convicted of an offense requiring registration.
The second conviction alleged that appellant had previously been convicted of failure to
register as a sex offender. Both of these priors were part of the elements of the offense
charged against appellant and different convictions from the ones used for punishment
enhancement. See TEX. CODE CRIM. PROC. ANN. art. 62.102
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       is something the State has to prove. We object to having to be required to
       approach the Bench before putting evidence on that.


After further discussion, the trial court ultimately made the following ruling:


       Trial Court: Besides those, the Court will grant your Motion in Limine,
       except for the ones [they] have to prove in the guilt-innocence stage in
       order to fulfill the requirements under the indictment.


       After the pre-trial matters were heard and ruled on, the case was set for trial to

begin on December 7, 2009. Prior to beginning the jury voir dire process, the trial court

inquired about any outstanding pre-trial matters. The State’s attorney responded thusly:

       Judge, the only thing I have is, I will have a request to have the Defendant
       fingerprinted prior to beginning evidence tomorrow for one of our
       witnesses. I will have a motion to have the Defendant fingerprinted for
       purposes of comparing prints.
       Part of the case-in-chief is the requirement to prove up a jurisdictional
       paragraph, which makes this a second-degree felony, which is a prior
       conviction. So, we’ll have to have that so we can prove up that pen pack
       in the guilt-innocence phase of the trial. It’s kind of like a felony DWI. And
       I have already discussed that with [appellant’s counsel].
       The other enhancement paragraphs are only punishment issues.


The trial court subsequently stated, “Okay. So, we’ll stick with the ones we already have

and the Court has already ruled on and obviously those rulings will continue.”

Subsequently, both sides began voir dire. During the State’s voir dire, reference to the

jurisdictional prior offenses was again made with a specific reference to a prior

conviction of failure to register as a sex offender. This reference was made without

objection by appellant. After the jury had been selected, the State proceeded with its

case-in-chief.


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       The State’s first witness was Debbie Gaines, a probation officer in Potter County.

After Gaines identified her employment as a supervision officer for sexual offenders, the

following questions and answers occurred:


       Q. All right. Do you know an individual by the name of Don McDaniel?


       A. Yes.


       Q. Do you see him here in the courtroom today?


       A. Yes, I do.


Gaines identified appellant and pointed out where he was seated in the courtroom. The

State’s attorney then asked the following, which led to appellant’s objection:


       Q. How do you know this Defendant?


       A. I supervised Mr. McDaniel.


       Q. And when did you do that?


       A. The first time from ’96 to 2001.


       Q. All right. ’96 to 2001. When- - -


At which point, appellant’s trial counsel asked to approach the bench. In a conference

outside the presence of the jury, trial counsel’s first action was to remind the Court that

a motion in limine had been filed, however, the balance of that conversation was

conducted off the record. Subsequently, when the Court went back on the record,

appellant’s trial counsel, the State’s counsel, and the Court had another lengthy

                                              4
discussion about appellant having had an original conviction requiring registration as a

sex offender and a subsequent offense for failure to register.        The State’s counsel

pointed out that both of these offenses had been pleaded as part of the elements of the

offense. Ultimately, appellant’s counsel took the position that the statement by the

witness “. . . could tend to confuse the jury and in that case, I’d ask for a mistrial.” The

trial court overruled the motion.


       After hearing the evidence, the jury found appellant guilty as charged in the

indictment and, following the punishment phase of the trial, sentenced appellant to

confinement in the ID-TDCJ for a term of 75 years. Appellant appeals contending that

the trial court erred in overruling his motion for mistrial.


       From a review of the record before us, it is unclear what appellant’s initial

objection was. However, from a totality of the record, it is clear that the trial court

overruled the objection of appellant.        Appellant contends, and the State responds

accordingly, that the action of the trial court was simply to overrule the motion for a

mistrial. Along those lines, all parties have primarily addressed that issue. However,

from this Court’s perspective, it appears that what the trial court did is simply overrule

an objection to the admission of the testimony of Gaines. This being so, we will address

the case as being one of evidentiary admissibility of Gaines’s testimony.




                                               5
                                   Standard of Review


         When addressing issues relating to the trial court’s admission of evidence, the

abuse of discretion standard applies.     See Billodeau v. State, 277 S.W.3d 34, 39

(Tex.Crim.App. 2009). A reviewing court applying the abuse of discretion standard

should not reverse a trial judge’s decision whose ruling was within the zone of

reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996).

Additionally, an appellate court will review the trial court’s ruling in light of what was

before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d

540, 542 (Tex.Crim.App. 2000). In the absence of findings of fact and conclusions of

law, the trial judge's decision will be sustained if it is correct on any theory of law

applicable to the case. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.

2000).


                                         Analysis


         Under the facts with which we are presented, Gaines’s answer could have gone

to the two priors that were elements of the offense. This was discussed in a conference

at the bench. Further, the objection was couched as a violation of the motion in limine.

Such an attempted classification is problematic for two reasons. First, the trial court

clearly eliminated the jurisdictional priors from the granting of the motion in limine.

Second, the violation of a motion in limine is, in and of itself, not an objection to the

admissibility of evidence nor is such a ruling determinable on the admissibility of

evidence. See Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.—Amarillo 2002, pet. ref’d).



                                            6
       We take all of the facts and circumstances known to the trial judge into

consideration when deciding if the trial court has abused its discretion. Weatherred, 15

S.W.3d at 542. Because the objected to testimony, when viewed with all that was

known by the trial court at the time of the ruling, was admissible, the trial court could not

have abused its discretion. Green, 934 S.W.2d at 102. Accordingly, appellant’s issue is

overruled.


                                        Conclusion


       Having overruled appellant’s issue, the judgment of the trial court is affirmed.




                                                         Mackey K. Hancock
                                                              Justice



Do not publish.




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