                                    NO. 07-04-0300-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   APRIL 20, 2006
                          ______________________________

                             JAMES M. SHARP, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

      FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

              NO. 2002-481284; HONORABLE RUSTY B. LADD, JUDGE
                       _______________________________


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


                                MEMORANDUM OPINION


       Appellant James M. Sharp appeals his conviction of assault/domestic violence and

sentence of 365 days in the Lubbock County Jail, probated for a term of 18 months, and

a fine of $2000.00. We will affirm.


       On July 1, 2002, the Lubbock County Sheriff’s Office received a call regarding an

unwanted guest trespassing at appellant’s home. Sergeant Brian Taylor and Deputy Ray

Short responded to the call. Appellant told the officers that his ex-girlfriend, Donna Lawson,

had visited him that night. Appellant informed the officers that when he let Lawson in the
house, she yelled at him and he told her to leave. According to Deputy Short, appellant

said that Lawson then threw a drink on him and tried to hit him. Appellant told the officers

that in defense of the attack, he punched Lawson in the face.


       While the officers were at appellant’s residence, appellant received a telephone call

from Lawson. Deputy Short spoke to Lawson at that time, and she told him that she

wanted to file a report that appellant hit her while she was at his residence. Deputy Short

and Sergeant Taylor went to Lawson’s residence to take her statement. Lawson was

visibly upset and crying when they arrived at her home. She told Deputy Short that

appellant had invited her to his house and, when she arrived, they began to argue. She

told the officers she left the house, realized that she had left her keys inside, and returned

to retrieve them. She indicated that, once inside the house, appellant hit her with a closed

fist on the face.


       Appellant was charged by information with misdemeanor assault/domestic violence.

At his jury trial, the State’s case-in-chief was presented through testimony by Lawson,

Short, Taylor and a sheriff’s office investigator, Debbie Anderson. The jury also saw

photographs of Lawson taken by Taylor. In her testimony, Lawson recanted her previous

accusations against appellant regarding the incident and testified she had mental problems

on the date in question for which she was eventually hospitalized. She stated that, on the

date of the incident, she was chasing appellant and poured a large drink on him. She

further testified appellant turned around and somehow she was struck. In her opinion,

appellant had not committed a crime. The jury nonetheless found him guilty.



                                              2
       Appellant raises four main issues1 in his appeal, contending the trial court erred by:

(1) allowing the State to question Lawson about allegations contained in a divorce petition2

she filed against appellant; (2) allowing Investigator Anderson to testify to statements

Lawson made to her; (3) admitting evidence of appellant’s prior indictment for aggravated

assault; and (4) denying appellant’s motion for a directed verdict because the evidence was

insufficient to prove that he was guilty beyond a reasonable doubt.


       We first address the sub-issues regarding the divorce petition. During the State’s

case-in-chief, the State asked Lawson about a divorce petition she filed against appellant

containing allegations of domestic violence or abuse. In particular, the petition alleged a

pattern of violence and threats against Lawson beginning in October 2001. The petition

further alleged that, in January of 1999, appellant had engaged in a pattern of extreme and

outrageous conduct that caused Lawson severe emotional distress. The trial court

sustained appellant’s objection to the admissibility of the actual divorce petition but allowed

the State to question Lawson about its contents. Appellant argues the divorce petition was

not admissible as the adopted statement of Lawson, that the State did not give appellant

reasonable notice of its intent to introduce the evidence as required by Rule 404(b), that

the testimony was not rebuttal evidence because it was admitted during the State’s case-in-

chief before appellant had presented evidence to be rebutted and, even if relevant, the

probative value of the testimony was outweighed by the danger of unfair prejudice.



       1
           Appellant has included various sub-issues under these main issues.
       2
       Although Lawson was described as appellant’s “ex-girlfriend,” evidence showed
she had filed a divorce petition against appellant.

                                              3
       It is the trial court’s task to determine whether extraneous conduct evidence is

relevant to a non-propensity purpose; the trial court’s ruling is entitled to deference and will

be reversed only for abuse of discretion.          Ransom v. State, 920 S.W.2d 288, 300

(Tex.Crim.App. 1996) (op. on reh’g). The State urges the testimony regarding the divorce

petition was appropriate because it was elicited from Lawson in rebuttal to the defensive

theories of self-defense, accident, mistake, and fabrication by the complaining witness.

See Powell v. State, 63 S.W.3d 435, 439 (Tex.Crim.App. 2001) (while evidence of other

crimes, wrongs or acts may have a tendency to show character conformity, it may also be

admissible for another purpose, such as rebuttal of a defensive theory); Ransom, 920

S.W.2d at 301 (extraneous offenses are admissible to rebut defensive theories).


       The State also contends the admission of testimony concerning the divorce petition,

if erroneous, was harmless, and we agree. The erroneous admission of an extraneous

offense is non-constitutional error.         Johnson v. State, 84 S.W.3d 726, 729

(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d); TEX . R. APP . P. 44.2(a). If the error is not

constitutional, we look to whether it affects substantial rights. TEX . R. APP . P. 44.2(b). A

substantial right is violated when the error made the subject of appellant’s complaint 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). If the error had no influence or only a

slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417

(Tex.Crim.App. 1998); see also TEX . R. APP . P. 44.4; Webb v. State, 36 S.W.3d 164, 181

(Tex.App.–Houston [14th Dist.] 2000, pet. ref’d) (error that is neither constitutional nor

affects a substantial right is harmless).


                                               4
       Deputy Short testified appellant told him that “[i]n defense of [Lawson’s] attack on

him, he punched her in the face.” During Lawson’s testimony regarding the incident, she

said that appellant “turned around, and the next thing I know, I just kind of saw stars . . . .

Well, the stars– well, I know that I just– I was hit, but I don’t know exactly with what or

anything like that.” When asked whether she recalled telling Deputy Short or Investigator

Anderson that appellant hit her with his hand, Lawson testified she “hurt” after the incident

and “had a black eye.” In response to one of the prosecutor’s questions about the incident,

Lawson stated, “I mean, I know that I–I was struck, but I mean, I don’t know that it was a

punch.” Responding to a question posed by defense counsel, Lawson affirmed appellant

was “sorry about what had happened.”


       As noted, during Sergeant Taylor’s testimony, the jury was shown three photographs

of Lawson. Taylor testified he took the pictures of Lawson on the night of the incident. The

photographs reveal redness in Lawson’s left eye and bruising around the eye. Taylor

affirmed that “based on [his] experience as an officer and seeing many of these cases . . .

this injury to Ms. Lawson’s left eye . . . would be consistent with being punched . . . .”


       The charge required, for a finding of guilt, that the jury find appellant did

“intentionally, knowingly or recklessly cause bodily injury to DONNA LAWSON by striking

the said DONNA LAWSON with the defendant’s hand . . . .”3 The evidence we have recited

in the previous two paragraphs was admitted without objection, and was amply sufficient



       3
         Section 22.01(a)(1) of the Penal Code provides a person commits an assault if he
“intentionally, knowingly, or recklessly causes bodily injury to another, including the
person’s spouse . . . .”

                                              5
to enable the jury to find appellant, at a minimum, recklessly caused bodily injury to

Lawson. The State did not emphasize the divorce petition evidence in its argument to the

jury. Having reviewed the entire record presented, we conclude Lawson’s testimony

regarding the divorce petition had no more than a slight effect, if any, on the jury’s decision.

Johnson, 967 S.W.2d at 417. We hold the potential error did not affect appellant’s

substantial rights and any error was, therefore, harmless. TEX . R. APP . P. 44.2(b).

Appellant’s first issue on appeal is overruled.


       In his second issue, appellant complains the trial court erred by allowing Investigator

Debbie Anderson to testify to statements Lawson made to her on August 16, 2002 and

October 29, 2002, concerning acts of violence or abuse by appellant against Lawson. In

determining whether a trial court erred in admitting evidence, we apply an abuse of

discretion standard. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999). “A

trial court abuses its discretion when its decision is so clearly wrong as to lie outside that

zone within which reasonable persons might disagree.” Montgomery v. State, 810 S.W.2d

372, 391 (Tex.Crim.App. 1991) (op. on reh’g).


       Anderson’s testimony was admitted under Rule of Evidence 613(a) as extrinsic

evidence of Lawson’s prior inconsistent statements.          Appellant first argues Lawson

unequivocally admitted making the statements to Investigator Anderson. Rule 613(a)

provides that if the witness unequivocally admits making the prior inconsistent statement,

extrinsic evidence of it shall not be admitted. As noted, during the course of the trial,

Lawson recanted her prior accusations of violence by appellant against her. The trial

court’s remarks, as it admitted Anderson’s testimony under Rule 613 and overruled

                                               6
appellant’s objections, make clear the trial court concluded that Lawson’s statements were

equivocal. The court’s characterization of her testimony was not unreasonable. Lawson

unequivocally admitted making statements to Investigator Anderson. When confronted with

her prior statements, however, Lawson’s answers in large part were not responsive.

Instead, she either said she did not remember what she told Investigator Anderson or

offered qualification and explanation. The court admonished Lawson during her testimony

for offering explanations rather than answers. The court’s decision to allow Anderson to

testify to Lawson’s prior statements was not an abuse of discretion. Broden v. State, 923

S.W.2d 183, 188-89 (Tex.App.–Amarillo 1996, no pet.).


         In his second sub-issue, appellant argues Anderson’s testimony regarding Lawson’s

prior statements to her constituted inadmissible hearsay. The State points to the language

of Rule of Evidence 802 stating that hearsay is not admissible “except as provided by

statute or these rules.” Because Anderson’s testimony was admissible under Rule 613(a),

the State reasons, it comes within the ambit of the quoted language from Rule 802. We

do not understand the State to contend, though, that Lawson’s statements were of the

types of prior statements described as excluded from the hearsay rule in Rule of Evidence

801(e). See 1 GOODE , TEXAS PRACTICE SERIES § 613.2 (3d ed. 2002) (noting that under

Rule of Evidence 801, “only a small number of prior inconsistent statements are accorded

favored treatment as nonhearsay”); 2 GOODE , TEXAS PRACTICE SERIES § 801.3 (3d ed.

2002).


         As noted, the abuse of discretion standard applies to our review of a trial court’s

admission or exclusion of evidence.        Cunningham v. State, 877 S.W.2d 310, 313

                                              7
(Tex.Crim.App. 1994). Under that standard, we uphold a trial court’s evidentiary ruling if

it is correct under any theory of law applicable to the case. Jones v. State, 833 S.W.2d

118, 125 n. 15 (Tex.Crim.App. 2002) (also noting that “the mere fact that a correct ruling

is given for the wrong reason will not result in a reversal”). See also Calloway v. State, 743

S.W.2d 645, 652 (Tex.Crim.App. 1988); Parsons v. State, 271 S.W.2d 643, 655

(Tex.Crim.App. 1953) (if ruling below is correct, it must be affirmed, although the lower

court relied upon a wrong ground or gave an incorrect reason).


       Hearsay is a statement, including a written statement, other than one made by the

declarant while testifying at the trial, which is offered to prove the truth of the matter

asserted. TEX . R. EVID . 801(d). “An extrajudical statement or writing which is offered for

the purpose of showing what was said rather than for the truth of the matter stated therein

does not constitute hearsay.” Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995)

(emphasis in original). Our review of the record leads to the conclusion the testimony of

Investigator Anderson could have been admitted for the purpose of showing what Lawson

said rather than the truth of the matter stated. Thus, we uphold the trial court’s ruling.

Jones, 833 S.W.2d at 125 n. 15.


       Finally, under his third sub-issue, appellant challenges Anderson’s testimony as

more prejudicial than probative. Appellant’s initial argument under this sub-issue was

based on the proposition that Lawson’s testimony was unequivocal with regard to the

statements made to Investigator Anderson. He contended Anderson’s testimony simply

allowed the State to present the same evidence a second time. In a reply brief, appellant

additionally contends Anderson’s testimony confused the issues for the jury. The approach

                                              8
under Rule 403 is to admit all relevant evidence unless the probative value is substantially

outweighed by the danger of unfair prejudice to a defendant. Montgomery, 810 S.W.2d at

377 (citing TEX . R. EVID . 403). In review of a trial court ruling under Rule 403, we are

mindful that “the trial court judge is in a superior position to evaluate the impact of the

evidence.” Id. at 378-79. Neither of appellant’s contentions demonstrates the trial court’s

judgment that the testimony of Investigator Anderson was more probative than prejudicial

involved an abuse of discretion. Id. Appellant’s second issue on appeal is overruled.

Cunningham, 877 S.W.2d at 313; Jones, 833 S.W.2d at 125 n. 15.


       In his third issue on appeal, appellant argues the trial court erred by admitting

evidence of a September 2002 incident4 in which appellant allegedly committed aggravated

assault against Lawson. Appellant first argues the trial court erred by admitting evidence

of the extraneous September 2002 assault because the State failed to demonstrate beyond

a reasonable doubt that he committed the offense and refers this court to Harrell v. State,

884 S.W.2d 154, 158 (Tex.Crim.App. 1994). The State asserts this contention was not

preserved for review, and we must agree. To preserve error for review, the complaint on

appeal must comport with the objection made at trial. Thomas v. State, 723 S.W.2d 696,



       4
         Appellant’s third issue asserts the trial court erred by admitting evidence of
appellant’s “prior indictment” for aggravated assault as a result of the September 2002
incident. Appellant adduced the evidence of his indictment for that assault during cross-
examination of Lawson and through the introduction of defendant’s exhibit 1, a motion and
order dismissing the cause. Appellant’s argument under his third issue goes to the
admission of testimony concerning the actual events of the September 2002 incident.
Applying the precept that a reviewing court should consider a party’s arguments supporting
a point of error and not merely the wording of the point, State v. Garland, 963 S.W.2d 95,
101 (Tex.App.–Austin 1998, pet. denied), we direct our analysis to appellant’s argument
supporting his third issue.

                                             9
700 (Tex.Crim.App. 1986); Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.–Amarillo 2002, pet.

ref’d). Otherwise, nothing is presented for appellate review. Watkins v. State, 946 S.W.2d

594, 600 (Tex.App.–Fort Worth 1997, pet. ref’d) (applying rule to appellate complaint that

extraneous offense was not proven). Appellant does not cite us to his objection to the

admission of evidence of the September 2002 assault on the basis that his commission of

the extraneous acts was not established beyond a reasonable doubt, and our review of the

record discloses no objection on that ground.5


       Appellant next contends it was error to admit evidence of the September 2002

assault because the State failed to meet its burden to prove its admissibility. Specifically,

appellant argues the State did not show evidence of the extraneous offense served any of

the purposes listed in Rule 404(b). Appellant is correct that the State, as the proponent of

the extraneous offense evidence, bore the burden of showing its admissibility, Karnes v.

State, 127 S.W.3d 184, 189 (Tex.App.–Fort Worth 2003, no pet.), but we disagree that the

State failed to meet the burden. The trial court reasonably could have found the evidence

of a September 2002 assault of Lawson by appellant to be probative that her July injury for

which he was being tried was not accidental. See, e.g., Powell v. State, 5 S.W.3d 369, 383

(Tex.App.–Texarkana 1999, pet. ref’d) (fact that extraneous conduct occurred after offense

on trial does not render it inadmissible under 404(b)).




       5
        We agree with the State that defense counsel’s objection as recorded on page 6
of volume 4 of the reporter’s record refers to the evidence supporting the charged offense,
meaning the July 2002 offense for which appellant was being tried, not the extraneous
September offense.

                                             10
       In his final sub-issue, appellant contends evidence of the September assault was

more prejudicial than probative and the trial court erred by overruling his objection under

Rule 403. He makes two arguments in support of his claim. The first is a reiteration of his

contention that the State did not introduce “clear proof that the offense was actually

committed and that it was committed by the Appellant.” The second contends evidence of

the September incident distracted the jury from its proper consideration of the July events.

We disagree with both arguments. It is undisputed that Lawson and appellant were the

persons involved in the September incident. Applying the analysis outlined in Montgomery,

810 S.W.2d at 395-97, we conclude appellant has not shown the trial court abused its

discretion in its balancing of the probative value and potential for prejudice of evidence of

the September incident. We overrule appellant’s third issue on appeal.


       Finally, appellant contends the trial court erred by denying his motion for a directed

verdict because the evidence was insufficient to prove that appellant was guilty beyond a

reasonable doubt.6     He argues that “[s]ince the State’s case was based solely on

statements made by Donna Lawson to police officers and at trial, a reasonable doubt was

raised by Ms. Lawson’s own testimony that the Appellant did not assault her.” A legal

sufficiency challenge requires us to determine whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the


       6
        Although appellant phrases his challenge to the trial court’s ruling on his motion for
directed verdict as one of factual sufficiency, the law appears well-settled that a challenge
on appeal to the denial of a motion for directed verdict is a challenge to the legal sufficiency
of the evidence rather than its factual sufficiency. Turner v. State, 101 S.W.3d 750, 761
(Tex.App.–Houston [1st Dist.] 2003, pet. ref’d) (citing Williams v. State, 937 S.W.2d 479,
482 (Tex.Crim.App. 1996)). We will review appellant’s final issue under a legal sufficiency
standard.

                                              11
essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556,

562 (Tex.Crim.App. 2000).


       The jury was entitled to believe the version of the events Lawson related to the

officers rather than her version at trial. See Bufkin v. State, 179 S.W.3d 166, 170

(Tex.App.–Houston [14th Dist.] 2005, pet. filed) (discussing the jury’s entitlement to believe

or disbelieve a recanting witness’s story of how the appellant acted in self-defense). Too,

as noted, the evidence presented at trial went beyond Lawson’s testimony and statements

to officers. The State’s case included three photographs of Lawson’s injuries taken on the

night of the incident, and Deputy Short’s testimony that appellant acknowledged he

punched Lawson. Based on this evidence a rational jury could find, beyond a reasonable

doubt, that appellant committed the essential elements of assault. King, 29 S.W.3d at 562.

We overrule appellant’s fourth issue on appeal and affirm the judgment of the trial court.




                                                  James T. Campbell
                                                      Justice

Do not publish.




                                             12
