                                                                WITHDRAWN 6-6-12
                                                                   REISSUED 6-6-12
                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-10-00198-CR

FLOYD ANTHONY BLOUNT,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2009-1640-C2


                         MEMORANDUM OPINION


      In two issues, Appellant Floyd Anthony Blount appeals his conviction for

aggravated assault. We will affirm.

                                  BACKGROUND

      Tony Montoya testified that he dropped his truck off at the local high school so

that his son could drive it home from baseball practice. Montoya, a plumber, left his

work tools in the truck. About thirty minutes after his son had arrived home from

baseball practice, Montoya noticed that his tools were missing.    Shortly thereafter,
Montoya’s younger son came running home from a nearby friend’s house. Montoya’s

younger son testified that a man had come by his friend’s house wanting to buy drugs

and that the man had tools that looked just like his dad’s tools. He told his dad this,

and they got in the truck and left to see if they could find the man.

        Montoya testified that they found Blount walking down the street and that

Blount had Montoya’s tools. Montoya confronted Blount. Blount said that he had

found the tools and that they were now his. Montoya continued to insist that the tools

were his, and Blount then pulled a machete out of his backpack. Blount took several

steps toward Montoya and threatened to “cut [him] up.” Montoya stated that Blount

seemed to be intoxicated. Montoya then told Blount that if he would leave the tools,

Montoya would not call the police. Blount put the machete up, left the tools, and

walked away.

        Montoya and his son went back to their home and called the police. The police

responded and found Blount with the machete. One of the officers testified that Blount

appeared to be intoxicated or high. Blount told the officers that he pulled the machete

on Montoya because Montoya had a gun. Montoya testified that he did not have a gun

with him when he confronted Blount.

        Blount testified that he did steal Montoya’s tools. His car had run out of gas, and

he was walking to the store so that he could sell Montoya’s tools and some tools that he

had had in his own car for gas money. As he was walking, Montoya confronted him

with a gun and demanded his tools back. Blount gave Montoya the tools. Montoya

then told Blount, “Okay, I’m going to let you make it this time.” Blount denied being

Blount v. State                                                                      Page 2
under the influence of anything that day and denied that he pulled the machete out and

threatened Montoya with it.

        A jury found Blount guilty of aggravated assault with a deadly weapon finding

and assessed his punishment, enhanced by two prior felony convictions, at thirty years’

imprisonment.

                                JUROR MISCONDUCT

        In his first issue, Blount contends that the trial court erred in not granting a

mistrial after a juror revealed during the trial that she had previously seen Blount so

drunk that he was refused service at a convenience store.

        During voir dire, the trial court asked if any of the venire-members knew Blount.

No one in the venire said that they knew Blount. Thereafter, on the morning of the

second day of the guilt/innocence phase of the trial, the bailiff reported to the court,

and the court in turn informed the State and Blount, that one of the jurors had

approached the bailiff and told him that she had previously encountered both Blount

and the victim at a convenience store and exchanged casual greetings. The bailiff also

confirmed that the juror told him that she had seen Blount inebriated or intoxicated on

more than one occasion but that she could still be fair.

        Blount’s counsel objected, arguing that he would have exercised a peremptory

strike on the juror had he known of her previous contact with Blount. Blount’s counsel

also suggested that he have the opportunity to examine the juror “so we can hear

exactly what she has to say to see . . . whether or not she’d be fair in going forward and




Blount v. State                                                                     Page 3
whether or not we need to move for a mistrial.” The court eventually decided to

proceed with the trial without permitting the examination of the juror:

               Well, she has informed the court bailiff, each time she’s disclosed
        some of this information, that she could be fair. I’m not going to permit
        the examination of the member of the jury.

               And is there anything, then, from the State or the defense before I
        bring the jury in the courtroom?

Blount’s counsel replied, “Just procedurally, in order to preserve error, I’d like to move

for a mistrial at this time.” The trial court denied the motion.

        Subsequently, after the court read the punishment verdict in open court but

before the jury was discharged, the trial court then decided that the juror should be

questioned. The juror testified that she had seen Blount and the victim on multiple

occasions at a convenience store.        On one occasion, she had seen Blount very

intoxicated, and the convenience store employees refused to sell him beer. When asked

if Blount then “cause[d] a scene,” she replied, “Not really.” She said that Blount told

them that they were lying and then went out to the parking lot. The juror stated that

she then laughed and said, “Well, he’s having a good time.”

        The juror agreed that having seen something already, it would be easier to

believe it when someone said it happened again. Defense counsel asked, “[S]o when

the officers testified about him getting mouthy during the arrest, that was pretty easy

for you to believe since you had seen him get mouthy?” At first, the juror replied “yes,”

but then changed her answer and said, “Not because of that. Because that’s what

people do when they’re full like that.” The juror ultimately stated that despite having


Blount v. State                                                                      Page 4
some knowledge of Blount, she “definitely” based her decision and her verdict solely

and only on the evidence that she heard in the courtroom.

        As soon as the juror exited the courtroom, the trial court asked, “Is there

anything from the State or the defense at this point in time?”          The State replied,

“Nothing from the State, Your Honor.” Blount’s counsel replied, “Nothing from the

defense, Your Honor.”

        The State initially argues that Blount forfeited his complaint about the juror

when, after the juror was questioned, Blount failed to re-urge his objection, renew his

request for a mistrial, or ask that a new trial be granted. Blount responds that the post-

verdict questioning of the juror functioned essentially as an offer of proof by way of

question and answer and did not require that he re-urge his objection. We agree with

the State.

        To have preserved a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion “with sufficient specificity to make

the trial court aware of the complaint, unless the specific grounds were apparent from

the context.” TEX. R. APP. P. 33.1(a)(A). Furthermore, the trial court must have ruled on

the request, objection, or motion, either expressly or implicitly, or refused to rule on the

request, objection, or motion, and the complaining party objected to the refusal. Id.

“The requirement that complaints be raised in the trial court (1) ensures that the trial

court will have an opportunity to prevent or correct errors, thereby eliminating the need

for a costly and time-consuming appeal and retrial; (2) guarantees that opposing

counsel will have a fair opportunity to respond to complaints; and (3) promotes the

Blount v. State                                                                       Page 5
orderly and effective presentation of the case to the trier of fact.” Gillenwaters v. State,

205 S.W.3d 534, 537 (Tex. Crim. App. 2006).

        Here, as soon as he discovered that the juror had previous contact with him,

Blount objected and requested the opportunity to examine the juror “so we can hear

exactly what she has to say to see . . . whether or not she’d be fair in going forward and

whether or not we need to move for a mistrial.” When the trial court denied this

request, Blount then moved for a mistrial, which the trial court also denied. Thereafter,

the trial court revisited its decision and essentially granted Blount part of the relief that

he had requested. The trial court allowed Blount the opportunity to examine the juror.

The juror then answered the questions of the trial court, the State, and Blount, and, at

that time, Blount did not re-urge his objection, renew his request for a mistrial, or ask

that a new trial be granted. Thus, Blount did not preserve his complaint for review. See

Nevarez v. State, 503 S.W.2d 767, 769-70 (Tex. Crim. App. 1974) (complaint about failing

to grant motion for mistrial unpreserved when defense attorney objected and moved for

mistrial, trial court sustained objection, and defense attorney did not request that jury

be instructed not to consider matter complained of and did not renew his motion for

mistrial); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (“[T]he point

of error on appeal must comport with the objection made at trial.”). Instead, Blount left

the impression that he was satisfied with the juror’s answers and felt that she had been

fair. We overrule Blount’s first issue.




Blount v. State                                                                        Page 6
                         IMPEACHMENT WITH PRIOR CONVICTIONS

          In his second issue, Blount contends that the trial court abused its discretion in

allowing the State to impeach him with five of his prior convictions that were outside

the Rule 609 ten-year window.1

          On direct examination, the following exchange took place between Blount and

his trial counsel:

                 Q       All right. Mr. Blount, I’m going to ask you a few questions.
          And the first thing I’m going to ask you about is similar to when the State
          was asking Mr. Montoya about some prior problems with the law. I’m
          going to talk to you about some prior problems you’ve had as well, okay?

                   A         Yes, sir.

                Q       Okay. Let’s see, in -- in 2005, were you convicted for
          Possession of Firearm By a Felon?

                   A         Yes, sir.

                   Q   Okay. In -- I’m sorry, give me one second here.
                             In November of 2000, in Harris County, were you
          convicted of Unauthorized Use of a Motor Vehicle?

                   A         Yes, sir.

1   Rule of Evidence 609 provides in pertinent part:

              (a) General Rule. For the purpose of attacking the credibility of a witness, evidence
          that the witness has been convicted of a crime shall be admitted if elicited from the
          witness or established by public record but only if the crime was a felony or involved
          moral turpitude, regardless of punishment, and the court determines that the probative
          value of admitting this evidence outweighs its prejudicial effect to a party.

              (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period
          of more than ten years has elapsed since the date of the conviction or of the release of the
          witness from the confinement imposed for that conviction, whichever is the later date,
          unless the court determines, in the interests of justice, that the probative value of the
          conviction supported by specific facts and circumstances substantially outweighs its
          prejudicial effect.

TEX. R. EVID. 609(a), (b).

Blount v. State                                                                                          Page 7
                  Q   In 2002, were you convicted of Burglary of a Motor Vehicle?

                  A   Yes, sir.

             Q     And then 2004, were you convicted of Theft in Harris
        County? May of ’04?

                  A   Yeah.

The following exchange then took place on cross-examination:

               Q      [Prosecutor] … Now, Mr. Blount, you didn’t really go over
        all your criminal history, did you?

                  A   Me?

                  Q   Uh-huh.

                  A   No.

               Q      Okay. In fact, you went to the penitentiary on November
        3rd, 1981?

                      [Defense Counsel]:     Objection, Your Honor.      May we
        approach?

                      THE COURT: State your objection on the record.

                      [Defense Counsel]: I’m sorry?

                      THE COURT: What’s your objection?

                     [Defense Counsel]: Um -- um, she’s going outside the scope
        of what’s admissible here as a witness, any felony or any crime of moral
        turpitude within the last 10 years is admissible, but not a conviction in
        1981.

                      [Prosecutor]:     Your Honor, there’s a steady chain of
        convictions that I’ll attach.

                      THE COURT: I’ll overrule the State’s -- I mean, overrule the
        defense’s objection.

Blount v. State                                                                      Page 8
               Q     [Prosecutor] Mr. Blount, isn’t it true that you went to the
        penitentiary on November 3rd, 1981, out of the 180th District Court in
        Harris County for the felony offense of Burglary?

                  A   Yes, ma’am.

               Q      All right. And isn’t it true that on that same date, November
        3rd, 1981, you also went to the penitentiary out of the 180th District Court
        of Harris County for the felony offense of Escape?

                  A   Yes.

              Q      All right. And then you went back to the penitentiary on
        October 28th of 2005, out of the 230th District Court of Harris County for
        Unlawful Possession of a Firearm By a Felon?

                  A   What year?

                  Q   2005.

                  A   Yes, ma’am.

               Q       All right. Isn’t it also true that you were convicted on March
        4th, 1981, in Harris County, Texas, for the offense of Resisting Arrest?

                  A   I don’t remember that.

                  Q   Okay. That’s going to be Cause Number 604238.

                      THE COURT:       Let me see counsel up here for just one
        second.

                      (Off-the-record bench conference with Court and counsel.)

              Q       [Prosecutor] Now, Mr. Blount, isn’t it true that you went to
        the penitentiary again on July 8th of 1999, out of the 176th District Court
        of Harris County for Possession of Cocaine?

                  A   Yes, ma’am.




Blount v. State                                                                         Page 9
              Q     And isn’t it true that you went to the penitentiary on that
        same date, July 8th, 1999, for another felony offense of Theft From a
        Person?

                  A   Yes, ma’am.

               Q    And November 8th, 2000, out of the 203rd District Court of
        Harris County for Unauthorized Use of a Motor Vehicle?

                  A   Yes, ma’am.

                  Q   And February 4th 2002, for Burglary of a Motor Vehicle?

                  A   I don’t remember that.

               Q   How about May 13th, 2004, in Harris County for Theft?
        Don’t remember those?

                  A   No.

        Blount complains that the 1981 conviction for resisting arrest, the 1981 conviction

for burglary of a building, the 1981 conviction for escape, the 1999 conviction for

possession of a controlled substance, and the 1999 conviction for theft from a person

were remote for purposes of Rule 609(b) and therefore should not have been admitted

into evidence during the guilt/innocence phase of the trial. The State responds that

Blount preserved only his complaint to the 1981 conviction for burglary of a building.

        As stated above, to have preserved a complaint for our review, a party must

have presented to the trial court a timely request, objection, or motion “with sufficient

specificity to make the trial court aware of the complaint, unless the specific grounds

were apparent from the context.” TEX. R. APP. P. 33.1(a)(A). The objecting party must

continue to object each time the objectionable question or evidence is offered, obtain a

running objection, or request a hearing outside the jury’s presence to preserve a

Blount v. State                                                                     Page 10
complaint for appellate review. Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco

2011, pet. ref’d).

        Here, the only objection Blount made to the admission of the prior convictions

was, “[S]he’s going outside the scope of what’s admissible here as a witness, any felony

or any crime of moral turpitude within the last 10 years is admissible, but not a

conviction in 1981.” Blount argues that the context of this objection shows that he was

objecting to “admission of any and all of Blount’s prior convictions that were outside

the ten-year window, not merely the 1981 conviction.” However, Blount specifically

objected only to a 1981 conviction, he did not obtain a running objection, and he did not

request a hearing outside the jury’s presence.         Thus, we conclude that Blount’s

complaints on appeal about the admission of the 1999 convictions were not preserved.

We will assume without deciding that his complaints about the admission of all three

1981 convictions were preserved and that the trial court erred in admitting the

evidence.

        Error under the Rules of Evidence in admitting evidence is nonconstitutional

error governed by Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b);

TEX. R. EVID. 103(a); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Rule

44.2(b) provides that a nonconstitutional error “that does not affect substantial rights

must be disregarded.” Substantial rights are not affected by the erroneous admission of

evidence if, after examining the record as a whole, we have fair assurance that the error

did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 356

(Tex. Crim. App. 2002). In conducting a harm analysis under Rule 44.2(b), we decide

Blount v. State                                                                      Page 11
“whether the error had a substantial or injurious effect on the jury verdict.” Morales v.

State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We “consider everything in the record,

including any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, the character of the error and how it

might be considered in connection with other evidence in the case[,] . . . the jury

instruction given by the trial judge, the State’s theory and any defensive theories,

closing arguments, and voir dire if material to appellant’s claim.” Id. We also consider

overwhelming evidence of guilt, but that is only one factor in our harm analysis.

Motilla, 78 S.W.3d at 356-58.

        Here, despite the admission of the 1981 convictions, the State offered evidence of

Blount’s lengthy and varied criminal history by questioning him about a 1999

conviction for possession of cocaine, a 1999 conviction for theft from a person, a 2000

conviction for unauthorized use of a motor vehicle, a 2002 conviction for burglary of a

motor vehicle, a 2004 conviction for theft, and a 2005 conviction for unlawful possession

of a firearm by a felon. Under these circumstances, we have a fair assurance that the

admission of the 1981 convictions did not influence the jury or had but a slight effect.

We overrule Blount’s second issue.

                                     CONCLUSION

        Having overruled both of Blount’s issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Blount v. State                                                                    Page 12
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 29, 2012
Do not publish
[CRPM]




Blount v. State                                 Page 13
