                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00215-CR

CHRISTOPHER LEE PICKETT,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                           From the 278th District Court
                               Leon County, Texas
                            Trial Court No. CM-11-573


                           MEMORANDUM OPINION


       Christopher Lee Pickett was convicted of aggravated assault with a deadly

weapon against a person with whom he had a dating relationship and sentenced to 99

years in prison.   TEX. PENAL CODE ANN. § 22.02(a)(2), (b)(1) (West 2011).     Pickett

appealed. Because Pickett was not harmed by the trial court’s failure to give him an

additional 10 days to respond to the State’s motion to amend the indictment and

because the trial court did not err in admitting evidence over Pickett’s objection, we

affirm the trial court’s judgment.
BACKGROUND

        Pickett and Suzanne Marie Ferguson had an on and off volatile relationship since

2009. By September of 2011, Ferguson was so afraid of Pickett that she instructed her

landlady to call the police if Pickett ever came by Ferguson’s apartment and took

Ferguson with him. On September 17, 2011, Ferguson was out walking to help in her

recovery from a previous neck injury. Pickett pulled up next to her in his GMC Yukon

SUV and asked if she wanted to ride to the store with him. Because she thought Pickett

was “acting okay,” Ferguson agreed. They did not go to the store, but drove around.

She later asked to be taken home. She and Pickett argued and he progressively became

more verbally abusive. He finally told her to get out and walk, keeping her shoes with

him. She walked about 10 minutes before hearing Pickett’s vehicle start up and get

really loud. She saw his vehicle coming toward her and could see Pickett’s face. Pickett

then ran over her. He turned his SUV around and ran over her again. Pickett drove by

three more times, yelling at Ferguson and then drove away.             The next morning

Ferguson was discovered by passersby. Ferguson survived, but suffered a crushed hip,

broken femur, shattered pelvis, crushed spine from L5 down, and a crushed tailbone.

ARTICLE 28.10

        In his first issue, Pickett contends that the trial court erred in refusing to allow

Pickett 10 days to respond to the State’s amended indictment, citing article 28.10(a) of

the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (West


Pickett v. State                                                                      Page 2
2006). Subsection (a) provides in part: “On the request of the defendant, the court shall

allow the defendant not less than 10 days, or a shorter period if requested by the

defendant, to respond to the amended indictment or information.” Id.

        On the day of trial, which was May 14, 2012, Pickett filed a motion to quash the

State’s amended indictment which had been both filed and approved by the trial court

on April 24, 2012. Pickett admitted that he knew of the State’s motion to amend the

indictment on April 24, 2012. He alleged he did not know, until the week before trial,

that the trial court had approved the amendment. In argument before the trial court on

his motion to quash, Pickett requested an additional 10 days to respond to the amended

indictment per subsection (a). Assuming without deciding that the trial court erred in

failing to grant an additional 10 days to respond to the indictment, we examine Pickett’s

complaint for harm.1

        Pickett contends that this type of error is subject to a constitutional harm

analysis. See TEX. R. APP. P. 44.2(a). However, Pickett never argued to the trial court

that his constitutional rights were violated by not receiving an additional 10 days to

respond. Further, “when only a statutory violation is claimed, the error must be treated

as non-constitutional for the purpose of conducting a harm analysis, and that



1Pickett may have waived this complaint for review. See TEX. R. APP. P. 33.1. He knew about the State’s
motion to amend 20 days before trial and did nothing. Instead, he waited until the day of trial to request
the additional time. Just as in the appellate court, the time to file any response to a motion begins when
the motion is filed. Generally, the Court is not required to request a response and may rule on the motion
10 days after it was filed. TEX. R. APP. P. 10.3(a). And if the appellate court rules prematurely, an
appellant may ask for reconsideration. Id. (b).

Pickett v. State                                                                                   Page 3
necessarily means the error cannot be deemed ‘structural.’” Gray v. State, 159 S.W.3d 95,

98 (Tex. Crim. App. 2005). Thus, we conduct a non-constitutional harm analysis, and

any error, defect, irregularity, or variance that does not affect Pickett’s substantial

rights, i.e., it did not seriously affect the verdict or render the trial fundamentally unfair,

must be disregarded. See TEX. R. APP. P. 44.2(b); Jacobson v. State, 398 S.W.3d 195, 204

(Tex. Crim. App. 2013).

        Pickett acknowledged that he had received the State’s motion to amend, which

appears in the record to have a copy of the proposed amended indictment with it, three

weeks before trial. He admitted that he knew about the trial court’s order the week

before trial. The only change to the indictment was the addition of the word “serious”

before the words “bodily injury.” Proving serious bodily injury was necessary for a

first degree felony offense involving family violence.           TEX. PENAL CODE ANN. §

22.02(a)(2), (b)(1) (West 2011). But it was not as if Pickett had no previous notice that he

was being charged with aggravated assault with a deadly weapon involving family

violence, a first degree felony. All of this information was included within the first

indictment.        And it was not as if Pickett would be surprised that Ferguson had

sustained serious bodily injury when he ran over her with his vehicle. Thus, we find

that any error in Pickett not receiving 10 days to respond to the State’s motion to amend

the indictment from the date he formally requested those 10 days, that being the start of

the trial, did not affect Pickett’s substantial rights, and he was not harmed.


Pickett v. State                                                                         Page 4
        Pickett’s first issue is overruled.

ADMISSION OF EVIDENCE

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

admitting State’s Exhibit 167, which included an order of deferred adjudication,

conditions of community supervision, a guilty plea memorandum, a document

evidencing a plea bargain agreement, and the trial court’s certification of defendant’s

right of appeal regarding Pickett and a prior offense of aggravated assault/family

violence against Ferguson. At trial, the State offered the exhibit to prove the dating

relationship between Pickett and Ferguson. Pickett objected under Rules of Evidence

401, 403, 404(b) and 609. The trial court overruled Pickett’s objections and immediately

gave the jury a limiting instruction. On appeal, Pickett only argues that the evidence

was irrelevant and even if it was relevant, its probative value was outweighed by the

danger of unfair prejudice. TEX. R. EVID. 401; 403.

Relevance

        Pickett contends that the exhibit was irrelevant because Pickett’s and Ferguson’s

dating relationship had already been established and was never contested. In this case,

the offense of aggravated assault is a first degree felony if “the actor uses a deadly

weapon during the commission of the assault and causes serious bodily injury to a

person whose relationship to or association with the defendant is described by” certain

provisions in the Texas Family Code. TEX. PENAL CODE § 22.02(b)(1) (West 2011). The


Pickett v. State                                                                   Page 5
only provision that applies to this case is the provision concerning a dating relationship.

TEX. FAM. CODE ANN. § 71.0021 (West Supp. 2013). A dating relationship "means a

relationship between individuals who have or have had a continuing relationship of a

romantic or intimate nature. Id. (b). The existence of such a relationship shall be

determined based on consideration of: (1) the length of the relationship; (2) the nature

of the relationship; and (3) the frequency and type of interaction between the persons

involved in the relationship. Id.

        Whether Pickett and Ferguson had a dating relationship is a fact of consequence.

The exhibit shows that Pickett pled guilty to a similar offense involving family violence

against Ferguson four months prior to the commission of this offense. Essentially, by

this plea, Pickett admitted he had a dating relationship with Ferguson. Thus, this

exhibit had the tendency to make the existence of a dating relationship more probable.

See TEX. R. EVID. 401.    Accordingly, the trial court did not abuse its discretion in

admitting Exhibit 167 over Pickett’s Rule 401 relevance objection.

Rule 403

        But even relevant evidence may be excluded if, as Pickett argues on appeal, its

probative value is substantially outweighed by the danger of unfair prejudice. See id.

403. In support of his argument, Pickett cites to one case, Montgomery v. State. See

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991), op’n on reh’g.




Pickett v. State                                                                     Page 6
        There are several relevant criteria stated in that case by which we are to

determine if relevant evidence should be excluded. Those are, (1) that the ultimate

issue was not seriously contested by the opponent; (2) that the State had other

convincing evidence to establish the ultimate issue to which the extraneous misconduct

was relevant; (3) that the probative value of the misconduct evidence was not, either

alone or in combination with other evidence, particularly compelling; and (4) that the

misconduct was of such a nature that a jury instruction to disregard it for any but its

proffered purpose would not likely have been efficacious.       Id. at 392-393. When the

record reveals one or more such relevant criteria reasonably contributing to a risk that

the probative value of the tendered evidence is substantially outweighed by unfair

prejudice, we should conclude that the trial court acted irrationally in failing to exclude

it and thus abused its discretion. Id. at 393.

        Pickett fails to mention any of the relevant criteria in his appellate brief. It

appears, however, that Pickett attempts to address some of these criteria which are

interspersed throughout his argument regarding this issue.

        As to the first criterion, Pickett contends that the existence of a dating

relationship was never contested. Although Pickett did not testify and presented no

witnesses for his defense, it is of little or no consequence that he did not officially

contest the existence of a dating relationship. Whether Pickett and Ferguson had a

dating relationship was an element of the offense which the State was required to


Pickett v. State                                                                     Page 7
prove. See TEX. PENAL CODE ANN. § 22.02(a)(2), (b)(1) (West 2011); Childress v. State, 285

S.W.3d 544, 546 (Tex. App.—Waco 2009, pet. ref’d). Pickett pled not guilty to the

offense which puts every element of the offense in issue; and a defendant’s tactical

decision to not contest an essential element does not remove the State’s burden to prove

that element. See Old Chief v. U.S., 519 U.S. 172, 199-200, 117 S. Ct. 644, 659, 136 L. Ed. 2d

574 (1997); TEX. CODE CRIM. PROC. ANN. art. 27.17 (West 2006). Further, at the charge

conference, Pickett would not stipulate that there was a dating relationship with

Ferguson. Accordingly, this criterion does not reasonably contribute to a risk that the

probative value of the tendered evidence was substantially outweighed by unfair

prejudice.

        As to the second criterion, Pickett states that the dating relationship had been

clearly established by the State. The State had other evidence of the dating relationship.

However, there was testimony that the relationship was off and on and that by the date

of the offense, Ferguson was afraid of Pickett. Further, this particular exhibit was the

only evidence of an admission by Pickett that he and Ferguson had a dating

relationship.      Accordingly, this criterion does not reasonably contribute to a risk that

the probative value of the tendered evidence was substantially outweighed by unfair

prejudice.

        Pickett does not discuss the third criterion but addresses the fourth criterion

stating that a limiting instruction does not always cure harm. This is an accurate


Pickett v. State                                                                        Page 8
statement.         However, we are to determine, based on the record, whether the

introduction of Exhibit 167 was “of such a nature that a jury instruction to disregard it

for any but its proffered purpose would not likely have been efficacious.” Montgomery,

810 S.W.2d at 393.

        The exhibit concerned a similar offense which occurred four months prior to the

commission of the current offense. The jury had already heard about how Pickett, in

the current offense, had run over Ferguson twice with his SUV and left her with severe

injuries. And although the State went through the exhibit with a witness, the emphasis

of the testimony was to show that Pickett’s plea was voluntary.

        Prior to any testimony about the exhibit, the trial court instructed the jury as

follows.

        …it will be admitted for the limited purpose of showing the dating
        relationship, if any, that exists between these two parties. And I want to
        instruct the jury, ladies and gentlemen of the jury, you’re instructed that
        evidence offered by the State of the defendant’s plea of guilty and
        probated sentence for the offense of aggravated assault, dating violence,
        may be considered by you only in assisting you, if it does, in determining
        whether the defendant and Suzanne Marie Ferguson were engaged in a
        dating relationship at the time of the offense charged in the indictment in
        this case. You may not consider this evidence for purposes of determining
        whether or not the defendant is guilty of aggravated assault in this case or
        for any other purpose.

The trial court’s charge to the jury included a very similar limiting instruction, and the

State only referenced the exhibit in its final argument to show a dating relationship

between Pickett and Ferguson.


Pickett v. State                                                                       Page 9
        After reviewing the record, we do not find that the introduction of Exhibit 167

was of such a nature that a jury instruction to disregard it for any but its proffered

purpose would not likely have been efficacious.

        Having determined that none of the relevant criteria are present, we conclude

that the trial court did not abuse its discretion in admitting Exhibit 167 over Pickett’s

Rule 403 objection. Pickett’s second issue is overruled.

CONCLUSION

        The trial court’s judgment is affirmed.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 27, 2013
Do not publish
[CRPM]




Pickett v. State                                                                  Page 10
