                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00179-CR



         JIMMY DON MATTHEWS, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 102nd District Court
                Bowie County, Texas
            Trial Court No. 12-F-583-102




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION
        Jimmy Don Matthews was convicted by a jury of criminal mischief resulting in damage

of $20,000.00 or more but less than $100,000.00. 1 The jury found the State’s enhancement

allegation true, and Matthews received an enhanced sentence of fourteen years’ imprisonment.

On appeal, Matthews argues that the trial court erred in (1) failing to instruct the jury to disregard

testimony of a witness speaking to Matthews’ prior bad acts and extraneous offenses,

(2) allowing the owner of a day care to testify that children were present during the commission

of the offense, and (3) failing to grant a motion for mistrial “based on the State’s willful violation

of the trial court’s ruling on Defendant’s Motion for Discovery.” We affirm the trial court’s

judgment.

I.      Factual Background

        Matthews lived approximately 150 yards away from his sister, Mazzie Matthews

Jamison. Yet, Jamison could not anticipate cordial visits from her brother due to the festering

animosity he held for her. Jamison testified that after their mother passed away, Jamison

“inherited everything,” and Matthews “was disinherited.” This rebuke “continued to degrade”

the already doomed relationship.

        Monty Foster, who had known Matthews for twenty years, testified that Matthews had

told Foster “he was going to kill [Jamison].” Sarah Beth Walker, who had grown up with




1
 In cause number 06-12-00180-CR, Matthews also appeals his conviction for criminal mischief resulting in damage
of $1,500.00 or more but less than $20,000.00.


                                                      2
Matthews, testified that Matthews expressed ill will towards his sister and had told Walker “he

would want to kill” his sister. Walker said that Matthews “meant it.”

       Instead of carrying out his threats, Jamison’s home became the target of Matthews’

aggravation. Melissa Brashears was operating a day care nearby when she heard gunshots at

9:20 a.m. on April 4, 2011. Afraid for the twelve children in her care, Brashears called 9-1-1 to

report the incident. She looked out of the window, saw Matthews’ truck, and “could tell there

was shots coming out of that truck.”

       Officer Matthew Mitchell was already responding to “a burglary alarm call at that

residence” when he was informed that “there were some shots fired.” Mitchell arrived at

Jamison’s home to find it was riddled with bullet holes. Unaware that Matthews was the

perpetrator, Mitchell went next door to Matthews’ home to see if he had witnessed the shooting.

Matthews acted as if he had been sleeping.

       Officer Chad Ford also responded to the call. He counted at least thirty-six “bullet holes

on the north, the west, and the south side of the house, on their windows, doors, all over the

house,” in the interior walls, and in the garage. According to Ford, the trajectory of the bullet

holes indicated that they were fired from Matthews’ property.

        Lead investigator Robby McCarver testified that he recovered .22 caliber shell casings

from Matthews’ home and truck, which matched the caliber of the shell casings left at Jamison’s

house. He also observed “[m]ultiple bullet holes in the side of the residence that faces Jimmy

Matthews’ home.”




                                                3
            The following day, Deputy Richard Godfrey was dispatched pursuant to a report that the

house was being flooded. 2 A “water hose had been placed in one of the broken windows that

was shot out and was flooding the home.” The interior of the residence was saturated with

roughly four inches of water, causing significant water damage. McCarver recovered a piece of

the same water hose in Matthews’ vehicle. Matthews was arrested. 3

            Foster testified that Matthews had told him “[t]hat he was going to knock the window out

and put a hose in the window” “[t]o flood the house.” After the incident, Matthews confessed to

Foster that he had completed the act. Matthews also reported to Walker that he caused the bullet

damage and flooding to Jamison’s home.

            Following the evidence, Matthews was convicted of criminal mischief.

II.         Complaints Regarding McCarver’s Testimony

            During McCarver’s direct examination, the State asked, “Now, Officer, how did you

know when you sort of went to Jimmy Don Matthews’ house, how did you know to focus in on

him as suspect?” McCarver responded, “Mr. Matthews is kind of known to law enforcement up

here as being very angered at his sister and directed other offenses in that direction.” Matthews’

counsel objected because “[t]here was a motion in limine to keep out any extraneous offenses.”

The trial court overruled Matthews’ objection.




2
    Ford testified that at the time of his walk-through of the home, there was no water on the floors.
3
 Captain Jeff Neal testified that during the interview, Matthews stated that a part of the water hose was in the back
of his truck prior to being questioned about it.

                                                              4
       Mathews’ first point of error alleges that the trial court erred in failing to instruct the jury

to disregard such testimony, but the argument on this point of error also complains that the

testimony was inadmissible because it violated a ruling on a motion in limine.

       A motion in limine is a preliminary ruling “subject to reconsideration by the court

throughout the course of the trial.” Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App.

1975). Thus, the grant or denial of a motion in limine does not preserve any error for appeal.

Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003). Accordingly, merely stating the

evidence violates the trial court’s previous grant of the motion in limine also does not preserve

error for appeal. Thierry v. State, 288 S.W.3d 80, 87 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d); Jones v. State, 111 S.W.3d 600, 604 (Tex. App.—Dallas 2003, pet. ref’d); Lusk v. State,

82 S.W.3d 57, 60 (Tex. App.—Amarillo 2002, pet. ref’d).

       However, the following next transpired:

               [Defense Counsel]: There was a motion in limine to keep out any extraneous
offenses.

                [State’s Attorney]: First of all, your opening statement you said identity is an
issue in this case. So if the door wasn’t opened, you just kicked it down.

               THE COURT:         So far I only heard the answer is he’s just known to law
enforcement.
               [State’s Attorney]: Sure. That’s what he said.

               [Defense Counsel]: But identity wouldn’t bring in his extraneous offenses.

               [State’s Attorney]: No, but it will for the sister, not the mom, but his sister.

               [Defense Counsel]: That has still to be proven.

               [State’s Attorney]: Well, that’s up to the jury.

                                                  5
                 THE COURT: Ms. Crisp, don’t go any further than that, but that answer so far,
        still overruled.

        Here, it appears that counsel brought to the trial court’s attention that a ruling on a motion

in limine barred admission of extraneous offense evidence. While a motion in limine alone does

not preserve error, counsel also objected that the evidence presented was an extraneous offense.

The trial court considered the objection and overruled it. The issue is preserved for appeal.

        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person to show action in conformity therewith. TEX. R. EVID. 404(b). But it may be admissible

for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake. Id. The proponent of such evidence has the burden to prove its

materiality. See Elkins v. State, 647 S.W.2d 663, 665 (Tex. Crim. App. 1983).

        There was some discussion after the objection was made that Matthews’ identity as the

perpetrator of the crime was at issue. 4 While an argument on the issue of identity was presented

to the trial court, the State made no effort to prove the logical relevance of the other offenses.

Therefore, the admission of evidence referring to extraneous offenses directed at the victim by

Matthews was inadmissible; the trial court should have instructed the jury to disregard such

evidence.

        Next, we address whether admission of McCarver’s statement was harmful to Matthews.

Under Texas Rule of Appellate Procedure 44.2(b), we must disregard nonconstitutional error that

does not affect a defendant’s “substantial rights,” that is, if, upon examining the record as a

4
 Matthews’ counsel stated in his opening argument that “there’s going to be a question of identity throughout this
trial that will involve weather conditions and assumptions, basically.” For the first time on appeal, the State also
argues that the testimony was relevant “to explain the course and scope of the criminal investigation.”
                                                         6
whole, there is a fair assurance that the error did not have a substantial and injurious effect or

influence in determining the jury’s verdict. TEX. R. APP. P. 44.2(b); Coble v. State, 330 S.W.3d

253, 280 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 3030 (2011). If the improperly

admitted evidence did not influence the jury or had but a slight effect upon its deliberations, such

nonconstitutional error is harmless.      Coble, 330 S.W.3d at 280.         In making this harm

determination, we examine the entire record and calculate the probable impact of the error upon

the rest of the evidence. Id.; see Walters v. State, 275 S.W.3d 568, 571 (Tex. App.—Texarkana

2008, no pet.) (citing Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005)).

       Here, Foster and Walker testified that Matthews disliked and threatened Jamison. The

jury heard that Matthews told Foster “[t]hat he was going to knock the window out and put a

hose in the window” “[t]o flood the house.” Foster and Walker both reported that Matthews

confessed to the crimes after their completion. McCarver’s statement was not emphasized by the

State, and no additional evidence of extraneous offenses was mentioned. Given Foster and

Walker’s testimony, which likely led the jury to its conclusion, we hold that the admission of

McCarver’s testimony was harmless.

III.   There Was no Objection to Brashear’s Testimony at Trial

       Matthews argues that the trial court erred in allowing Brashears to testify that she

operated a day care where children were present during the shooting. We review a trial court’s

decision to admit or exclude evidence under an abuse of discretion standard. Young v. State, 382

S.W.3d 414, 420 (Tex. App.—Texarkana 2012, pet. ref’d) (citing Green v. State, 934 S.W.2d 92,

101–02 (Tex. Crim. App. 1996); Brown v. State, 189 S.W.3d 382, 385 (Tex. App.—Texarkana

                                                 7
2006, pet. ref’d)). A trial court abuses its discretion only when its decision is clearly wrong and

lies outside the zone of reasonable disagreement.              Id. (citing Cantu v. State, 842 S.W.2d 667

(Tex. Crim. App. 1992)).

         Matthews filed the following motion in limine:

         1. Defendant requests that the 911 recording be excluded from evidence due to
            the State’s ability to call parties involved in the call.

                  a. The defendant requests any mention by Missy Brashears as to a
                     daycare or protecting children be excluded from testimony during trial
                     pursuant to Rule 401 as to its relevance to the case at hand.
                     Furthermore, the probative value of Mrs. Brashear’s business [sic] is
                     substantially outweighed by unfair prejudice and is likely to confuse
                     the jury.

The motion in limine was denied. As explained earlier, a ruling on a motion in limine does not

preserve error for appeal. Thierry, 288 S.W.3d at 87. During a pretrial hearing, Matthews again

requested exclusion of either the entire 9-1-1 call, or, in the alternative, redaction of the excerpt

that mentioned Brashears was a day care operator and that children were present during the

offense. The trial court denied Matthews’ request stating,

         I don’t think the fact that Ms. Brashears is a day care protector of children, if I do
         a balancing test on that, it just doesn’t weigh out. I can’t see that that’s going to
         be something that prejudices the jury. So I’m going to deny that part of it. 5

5
 Although not included in Matthews’ brief, we find that two excerpts from the record occurring prior to opening
statements are worth mentioning. In the first, counsel attempts to obtain a running objection to the 9-1-1 recording:

                 [Defense Counsel]: Your Honor, before the jury comes in, I’d just like to -- I believe that
        the State will get into, I don’t know, maybe during opening, what we had talked about with the
        911 phone call with day care and whatnot at Missy Brashears’ house, I just wanted to enter a
        running objection to any of that information coming in about --
                 THE COURT: Sure. And I understood in your Motion in Limine concerned basically
        the 911 call and the fact she talks about being a caregiver and takes care of children.
                 [Defense Counsel]: Yes.
                 THE COURT: Your running objection will be noted.

                                                         8
This ruling was applicable to the 9-1-1 call from Brashears which was never admitted at trial.

         At trial, Brashears testified that she had a day care at her home and that children were

present at the time of the offense. “As a prerequisite to presenting a complaint for appellate

review, the record must show that:            (1) the complaint was made to the trial court by a timely

request, objection, or motion. . . .” TEX. R. APP. P. 33.1(a)(1). No objection was made during

Brashear’s testimony. Thus, error was not preserved. Id.; Martinez v. State, 91 S.W.3d 331, 336

(Tex. Crim. App. 2002).

         Also, Ford testified without objection that the shooting was “in a residential

neighborhood, and we’re only a block away from a day care. And I’m not sure how many

residents were home at that time, but with that many shots being fired in a residential area, that’s

always a concern, especially with children around.”                      If the complained-of evidence “is

subsequently introduced from another source without objection, the defendant waives his earlier

objection.” Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996); Bryant v. State, 282

S.W.3d 156, 165 (Tex. App.—Texarkana 2009, pet. ref’d).

         Matthews did not preserve his second point of error. It is overruled.




In the second excerpt, counsel secures a running objection to statements made in the 9-1-1 call:

                   [Defense Counsel]: Your Honor, real quick before we bring them in, on that objection, is
         that just noted right now, or do we have any kind of ruling on that? Are you just going to handle it
         when it comes up?
                   THE COURT: Are you talking about the ruling on the 911 call?
                   [Defense Counsel]: Yes, sir.
                   THE COURT: Well, I think I denied it yesterday, and you asked for a running objection.
         And I said I’ll recognize it as a running objection each and every time it’s mentioned.

There was no ruling either allowing or disallowing Brashear’s testimony outside of the 9-1-1 call.
                                                          9
IV.      Trial Court Was Within its Discretion to Overrule the Motion for Mistrial Since a
         Ruling on Matthews’ Discovery Motion Was Not Obtained

         Matthews argues that testimony from Foster and Walker concerning his confessions

violated the court’s ruling on his motion for discovery. Foster and Walker both testified without

objection. It was not until after their testimony that counsel raised the issue of the alleged

violation of the motion for discovery. A motion for mistrial complaining of “the State’s willful

violation of this Court’s Discovery Order” was filed the following day. A trial court’s ruling

denying a motion for mistrial is reviewed for an abuse of discretion. Duke v. State, 365 S.W.3d

722, 727 n.9 (Tex. App.—Texarkana 2012, pet. ref’d) (citing Ocon v. State, 284 S.W.3d 880,

884 (Tex. Crim. App. 2009)). “The ruling must be upheld if it was within the zone of reasonable

disagreement.” Id. (quoting Ocon, 284 S.W.3d at 884).

         Prior to trial, Matthews had filed a motion to discover witness statements which

requested the “State to make available to the Defendant and his counsel any written statement

made by any witness in this cause.” A motion in limine requesting a hearing prior to admission

of any oral or written statements was denied by the trial court.

         The motion cited by Matthews in support of his argument sought discovery of

                [a]ll oral, written and recorded statements of the Defendant, and
         memoranda of said statements made to any investigating officer or any member of
         any law enforcement agency, or to any third party which is in the possession of or
         within the knowledge of the District Attorney’s Officer or any agent thereof,
         including any law enforcement agency. 6

    Paragraph nine of Matthew’s motion for discovery sought

6
 A video recording of an oral statement “that [Matthews] gave at the police department” was tendered to defense
counsel.

                                                      10
                  [a]ll statements made by any party or witness to this alleged offense, 7 in
           the possession of or within the knowledge of the District Attorney or any of his
           agents, including any law enforcement agency, whether such statements were
           written or oral, which might in any manner be material to the innocence of the
           Defendant or to the punishment, if any, to be set in this case.

            During a pretrial hearing, the trial court examined each numbered paragraph of the

motion for discovery. Matthews’ brief represents to this Court that paragraphs three and nine of

the motions were granted by the trial court. However, where there were no objections or

contentions from the State as to a particular numbered paragraph, the trial judge stated, “I’m not

going to grant it or deny it. We’ll just move along, because it seems to be there’s nothing in

controversy here.” An instruction to “move along” is not a ruling. See Stevens v. State, 671

S.W.2d 517, 521 (Tex. Crim. App. 1984). While the record clearly shows that some paragraphs

of the motion for discovery were granted, paragraphs three and nine were not among them.

           At the hearing on the motion for mistrial, the trial judge indicated that he had not ruled on

these motions. He stated:

           I think, more than looking at the defense’s discovery motion, I should concentrate
           more on what I actually ordered when we went through that on Monday
           afternoon. And I don’t think that I ever made -- you know, when you look at
           what they’re supposed to do, was there ever a plain directive from the Court to the
           State to do that, and I don’t think I did. I don’t think any of the three of us did.

           “A defendant in a criminal case does not have a general right to discovery of evidence in

the possession of the State.” Owens v. State, 381 S.W.3d 696, 701 (Tex. App.—Texarkana 2012,

no pet.). An exception exists if the trial court grants a motion for discovery and orders certain

evidence be disclosed or if the evidence sought is discoverable by statute. Id.; see Lindley v.


7
    Foster and Walker did not witness the shooting or flooding of Jamison’s home.
                                                          11
State, 635 S.W.2d 541 (Tex. Crim. App. 1982). “A motion requests action by the trial court and

is not binding until granted.” Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993); see

Mitchell v. State, 982 S.W.2d 425 (Tex. Crim. App. 1998). Given the record here, we cannot say

that Matthews met his burden to secure a ruling on paragraphs three and nine of his motion for

discovery. Accordingly, the denial of Matthew’s motion for mistrial was within the court’s

discretion. 8

V.       Conclusion

         We affirm the trial court’s judgment.



                                                                        Jack Carter
                                                                        Justice

Date Submitted:            June 5, 2013
Date Decided:              June 18, 2013

Do Not Publish




8
 Further, “the intended purpose of the discovery order [is] to prevent surprise and to permit appellant to prepare an
adequate defense.” Hall v. State, 283 S.W.3d 137, 164 (Tex. App.—Austin 2009, pet. ref’d) (quoting Oprean v.
State, 238 S.W.3d 412, 415 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)). Although the motion for mistrial
claimed that Matthews would have employed a different trial strategy if he had knowledge of Foster’s and Walker’s
testimony regarding Matthews’confessions, no motion for continuance was made. We have previously held that
“[f]ailure to seek a continuance or postponement of the trial when the State allegedly fails to fully effectual
discovery causing surprise waived any error.” McQueen v. State, 984 S.W.2d 712, 718 (Tex. App.—Texarkana
1998, no pet.).
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