Opinion filed December 19, 2013




                                        In The


        Eleventh Court of Appeals
                                     __________
                                  No. 11-11-00365-CR
                                      __________

                   SHARON LYNNE CORBIN, Appellant
                                           V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 104th District Court
                              Taylor County, Texas
                          Trial Court Cause No. 17793B

                       MEMORANDUM OPINION
       The jury found Sharon Lynne Corbin guilty of aggravated assault and
assessed her punishment at confinement for five years. In two points of error,
Appellant asserts that the trial court improperly sustained objections to two hearsay
statements that she sought to introduce. We affirm.

                                      I. Trial Evidence

       Appellant does not challenge the sufficiency of the evidence, but some facts
are provided for context. Appellant had moved to Texas from South Carolina and
temporarily lived at Bill Guinn’s house with his daughter, Lillie “Kat” Guinn.
Robert Tettleton, Kat’s fiancé, also lived there. Appellant, Kat, and Tettleton
decided one late afternoon to go to Guitars and Cadillacs Bar in Abilene to drink
and dance. They saw Amber Laird at the bar, and after they had spent some time
there together, they all returned to Guinn’s house.
       Appellant, Laird, Kat, and Tettleton continued to drink and socialize in the
dining room. Appellant claimed that, later in the night, Laird threatened “to blow
[Appellant’s] f-----g brains out.”                Laird and Kat denied that Laird threatened
Appellant.        Kat testified that, as the night wore on, Appellant became angry
because the group had discussed her personal issues.
       Laird and Kat testified that, still later while they and Tettleton were in the
bedroom, Appellant entered the bedroom, pulled a knife from her purse that was on
the couch in that room, and held the knife to Laird’s throat. Laird testified that
Appellant used the knife to cut Laird’s upper chest near her neck and that
Appellant used her fingernails to scratch the back of Laird’s neck, her upper lip,
and her nose.1 Tettleton called the police; 2 Officer Kevin Pruitt and Officer Joshua
Ward responded.
       Officers Pruitt and Ward arrived, and Officer Ward took Appellant’s
statement and Kat’s statement. Officer Ward testified that Appellant smelled of
alcohol, appeared to be intoxicated, and was very agitated. He reported that
Appellant said, “I only did what [Laird] deserved.” He also reported that Kat gave
him Appellant’s knife and a field statement. Officer Ward testified that he and
Officer Pruitt arrested Appellant.



       1
        The trial court admitted nurse Amy Cullers’s testimony about Laird’s emergency room condition
and Laird’s emergency room medical records and photos that documented her injuries.
       2
           The trial court also admitted the 911 audio recording of Tettleton’s call.

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      At trial, Appellant denied that she threatened Laird or that she scratched her
or cut her with the knife, but she admitted that she owned the knife and that it was
in her back pocket. Appellant claimed that Laird and Tettleton had fabricated the
assault to keep Appellant from telling Kat that Laird and Tettleton had sex that
night in Kat’s bedroom while Kat was asleep in that same bedroom. When cross-
examined about how she had reached across Tettleton to attack Laird, Appellant
said that she did not reach across Tettleton because he was on the other side of the
bed and that she never pulled out her knife.
      Appellant attempted to testify about Laird’s intent to file a false police report
against her because she threatened to disclose to Kat that Laird had sex with
Tettleton.   Appellant also tried to testify that Laird had “clawed” and “hit”
herself—to make it look like Appellant injured her—and that Laird had said she
was going to have Appellant arrested. The trial court sustained the State’s hearsay
objections to the statements. But the trial court did admit Appellant’s testimony
that Laird had “clawed” and “hit” herself.

                              II. Discussion and Analysis

      Hearsay is a statement, other than one made by the declarant while testifying
at a trial or hearing, offered in evidence to prove the truth of the matter asserted.
TEX. R. EVID. 801(d). “In order for hearsay to be admissible, it must fit into an
exception provided by a statute or the Rules of Evidence. TEX. R. EVID. 802.”
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). “Once the opponent
of hearsay evidence makes the proper objection, it becomes the burden of the
proponent of the evidence to establish that an exception applies that would make
the evidence admissible in spite of its hearsay character.” Taylor v. State, 268
S.W.3d 571, 578–79 (Tex. Crim. App. 2008) (citing Martinez v. State, 178 S.W.3d



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806, 815 (Tex. Crim. App. 2005), and Cofield v. State, 891 S.W.2d 952, 954 (Tex.
Crim. App. 1994)).
      The trial court has the discretion to admit an out-of-court statement if it falls
within an exception to the general hearsay exclusion rule. Lawton v. State, 913
S.W.2d 542, 553 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v.
State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). This court does not conduct a
de novo review, but uses an abuse of discretion standard to review the trial court’s
evidentiary rulings. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App.
1994). “An abuse of discretion occurs ‘only when the trial judge’s decision was so
clearly wrong as to lie outside that zone within which reasonable persons might
disagree.’” Zuliani, 97 S.W.3d at 595 (quoting Cantu v. State, 842 S.W.2d 667,
682 (Tex. Crim. App. 1992)).
      Appellant contends that she should have been allowed to testify that Laird
threatened to file a “false” assault charge against her because she intended to tell
Kat that Laird had sex with Tettleton.        Appellant testified, “Laird made the
comment that . . . Kat[] would not believe what was going on, that she was
knocked out, and . . . would stay that way. . . . Laird made the comment that [Kat]
wouldn’t believe . . . what had happened and continued to scratch--.” The State
objected on hearsay grounds; defense counsel argued that the evidence went to
Laird’s state of mind. The court sustained the objection and instructed the jury to
disregard.   Appellant argues that the statement was not hearsay because the
statement related to the declarant’s state of mind. TEX. R. EVID. 803(3). Appellant
is correct that the statement was not hearsay, but for a different reason. In this
case, a statement by Appellant about Laird’s beliefs—concerning Kat’s potential
rejection or acceptance of Appellant’s claim that Laird slept with Tettleton—was
not offered to prove the truth of what Laird or Kat actually believed, but was


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simply offered to show that Laird made a statement that may have evinced a
motive or intent by her to lie.
      The trial court should have overruled the State’s objection to Appellant’s
statement because the statement was not hearsay. But because Appellant testified
about the difficulties she and Laird had that evening, because she testified about
the sexual liaison between Laird and Tettleton, and because she testified about
Laird’s and Tettleton’s intention to continue their sexual relationship, the trial
court’s error was harmless if it did not affect Appellant’s substantial rights.
TEX. R. APP. P. 44.2(b); Mosley, 983 S.W.2d at 259.
      Appellant also contends that the trial court should have allowed her to testify
that Laird was going to injure herself in order to support the assault charge.
Appellant stated, “Laird started clawing herself and hitting herself in the face,
stating the fact that she was gonna call the law and have me arrested for . . . cutting
her with my knife.” The trial court sustained the State’s hearsay objection. But a
statement is not hearsay if it is offered to describe one person’s observations about
how another person acted, unless that person’s actions were intended to be a
substitute for verbal expression. See TEX. R. EVID. 801(a).
      The trial court later allowed the following from Appellant, “[Officer Ward]
and I spoke and I told him about [Laird] and about her clawing herself and hitting
herself,” and other similar testimony. Because the “clawing and hitting” evidence
was admitted later, the trial court’s error was harmless if it did not affect
Appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Mosley, 983 S.W.2d at 259.
      Appellant further asserts that Laird’s statement that she was “gonna call the
law” evinced Laird’s state of mind concerning her future conduct and was
admissible under TEX. R. EVID. 803(3). Rule 803(3) is an exception to the hearsay
rule that allows the admission of a person’s out-of-court statement concerning her
then existing state of mind, including “intent, plan, [or] motive” and, thus,
                                           5
including a statement of intended future conduct.        TEX. R. EVID. 803(3); see
Saldivar v. State, 980 S.W.2d 475, 495 (Tex. App.—Houston [14th Dist.] 1998,
pet. ref’d). Laird never called the police; Officer Ward testified that Appellant said
Laird got what she deserved; and Kat testified that Appellant attacked Laird. The
trial court’s decision to sustain the hearsay objection to Laird’s statement that “she
was gonna call the law” was outside the zone of reasonable disagreement. We
disregard the error if it did not affect Appellant’s substantial rights. TEX. R.
APP. P. 44.2(b); Mosley, 983 S.W.2d at 259.
      A substantial right is affected when the error had a substantial and injurious
effect or influence on the jury’s verdict. Ballard v. State, 110 S.W.3d 538, 544
(Tex. App.—Eastland 2003, pet. dism’d, untimely filed). We review the whole
record to determine whether the error influenced the jury’s verdict. Ballard, 110
S.W.3d at 544 (citing Mosley, 983 S.W.2d at 259). One factor we consider is the
overwhelming evidence of guilt. Ballard, 110 S.W.3d at 544 (citing TEX. R.
APP. P. 44.2(b) and Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)).
      The jury heard Officer Ward testify that Appellant was intoxicated and agi-
tated and that she told him that Laird got what she deserved. Laird and Kat
testified that Appellant attacked Laird. Laird never called the police. Tettleton
called 911, and the jury heard that call. Amy Cullers, the emergency room nurse,
testified about Laird’s injuries. Appellant took the stand and admitted that she had
several drinks and that she passed out on the way home from the bar.
      Appellant denied that she assaulted Laird, and she also denied that she
reached across Tettleton to cut Laird, but she admitted that she had a knife on her
and that she had a prior conviction in South Carolina for assault on a correctional
employee. The trial court admitted the following evidence about Laird’s state of
mind: (1) Laird threatened “to blow [Appellant’s] f-----g brains out”; (2) Laird and
Tettleton had sex while Kat was asleep in the bedroom; and (3) Laird injured
                                          6
herself to support the aggravated assault charge. Appellant used all of this evi-
dence to vigorously challenge the State’s case.
      We have reviewed the record as a whole, and we cannot say that any error in
the evidentiary rulings of the trial court substantially affected Appellant’s rights.
We overrule Appellant’s two points of error.
                                   III. This Court’s Ruling
      We affirm the judgment of the trial court.



                                                       MIKE WILLSON
                                                       JUSTICE

December 19, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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