                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-14-00306-CR

DWIGHT GERHARD RABE,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                      From the County Court at Law No. 1
                             Brazos County, Texas
                      Trial Court No. 11-05084-CRM-CCL1


                         MEMORANDUM OPINION


      In two issues, appellant, Dwight Gerhard Rabe, challenges his conviction for

misdemeanor resisting arrest. See TEX. PENAL CODE ANN. § 38.03(a), (c) (West 2011).

Specifically, Rabe contends that the trial court abused its discretion by allowing two

law-enforcement officers to express their opinions regarding his guilt of the charged

offense. We affirm.

                                  I.     BACKGROUND
         At 11:21 p.m., on September 24, 2011, Officer Jeremy Elmore of the Bryan Police

Department responded to a noise-complaint call in Brazos County. Typically, with a

noise-complaint call, Bryan police officers “drive to the location, see if we can hear the

music ourselves, try to locate it, and talk to the owner of the property.” Upon arrival,

Officer Elmore clearly “heard some loud music” and determined that a number of

college students were having a pasture party. Officer Elmore told the students to turn

off the music and asked who owned the property. One student called the property

owners—Rabe and his wife. A short time later, Rabe and his wife appeared on the

scene.

         Officer Elmore recounted that when Rabe and his wife approached, “they started

yelling and screaming and saying I had entered a different country . . . .” When Officer

Elmore told Rabe and his wife that the party was over, Rabe stated that Officer Elmore

“was trespassing and that they were going to arrest me. Mr. Rabe told me he was the

emperor and the wife was the empress.” In response to Rabe’s aggression, Officer

Elmore called for backup.

         Because of Rabe’s confrontational and aggressive demeanor, neither Officer

Elmore nor Sergeant Brett Boswell of the Bryan Police Department were able to obtain

Rabe’s name or identification that would allow them to complete their intended action

of issuing Rabe a citation for violating a noise ordinance. Eventually, Sergeant Boswell

instructed Officer Elmore to place Rabe under arrest.

         Rabe was ordered to turn around and place his hands behind his back; however,

Rabe refused and “took a fighting stance.” As Officer Elmore attempted to grab Rabe’s

Rabe v. State                                                                       Page 2
arm to place him in handcuffs, Rabe grabbed Officer Elmore’s arm. Officer Elmore

threw off Rabe’s arm, and Officer Michael Houk, who had recently arrived, got

involved. Eventually, the three individuals fell to the ground. While on the ground

Rabe “tried to wrap his legs” around Officer Elmore’s legs. Rabe also attempted to grab

Officer Elmore’s flashlight, which is a long and weighty object. Thereafter, Officer

Houk used a Taser against Rabe to bring him into compliance. As a result of the scuffle,

both Rabe and Officer Elmore sustained minor cuts.               Nevertheless, the officers

completed the arrest of Rabe.

        Subsequently, Rabe was charged with misdemeanor resisting arrest. See id. §

38.03(a). At the conclusion of the trial, the jury found Rabe guilty of the charged

offense. After the jury panel was dismissed, the parties reached an agreement as to

sentencing. The trial court accepted the agreement of the parties and sentenced Rabe to

fifty days in jail with no fine. Thereafter, the trial court certified Rabe’s right of appeal,

and this appeal followed.

                                       II.     ANALYSIS

        In his issues on appeal, Rabe complains about testimony provided by Officers

Elmore and Houk regarding their opinion as to whether Rabe was resisting arrest.

A.      Applicable Law

        We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); McDonald v.

State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion

standard, an appellate court should not disturb the trial court’s decision if the ruling

Rabe v. State                                                                           Page 3
was within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367

(Tex. Crim. App. 2008). We will affirm the decision of the trial court if there is any valid

ground upon which the decision could have been made. State v. Ross, 32 S.W.3d 853,

856 (Tex. Crim. App. 2000).

B.      The Complained-of Testimony

        Here, Rabe argues that the trial court abused its discretion by allowing Officers

Elmore and Houk to testify that Rabe’s actions during the scuffle amounted to resisting

arrest. Specifically, Rabe complains about the following exchanges:

        Q [The State]:             Okay. And what happens then?

        A [Officer Elmore]:        He grabs me. That arm.

        Q:                         This arm?

        A:                         Yes.

        Q:                         Like this?

        A:                         Yes, sir.

        Q:                         What did you do?

        A:                         I kind of take his arm and throw it off of that.

        Q:                         Why did you do that?

        A:                         Because at that point I didn’t want him putting
                                   force on me.

        Q:                         Okay. Is this force against you?

        A:                         Yes.

        Q:                         Is this resisting arrest?


Rabe v. State                                                                         Page 4
        A:                         Yes.

        [Defense counsel]:         Objection, drawing a legal conclusion.       The
                                   jury is here to make the decision.

        [The State]:               He can say his opinion.

        [Defense counsel]:         I disagree. He can tell the facts of what was
                                   done, but the jury is here to determine whether
                                   or not that’s resisting arrest or using force.

        THE COURT:                 Overruled.

        Later, during direct examination, Officer Houk testified to the following:

        Q [The State]:             How did—

        A [Officer Houk]:          If he was just trying to get up, then he
                                   wouldn’t have been trying to grab for my
                                   hands. He would have been trying to put his
                                   hands on the ground and trying to actually do
                                   something to try to get to the point of actually
                                   being able to get up.

        Q:                         Now, was he grabbing at your hand like, you
                                   know, “give me a hand to pull me up” or
                                   anything?

        A:                         No. I was laying on the ground and I was
                                   trying to reach for his arm or his wrist and he
                                   was just moving his hand around to try to
                                   intercept my hand and keep me from getting
                                   ahold of him.

        Q:                         You felt like he was trying to prevent or
                                   obstruct his arrest?

        A:                         Absolutely.

        [Defense counsel]:         Judge, I’m going to object to the ending of that.
                                   It comes to a legal conclusion that the jury is
                                   here for.


Rabe v. State                                                                          Page 5
        THE COURT:                 All right. Overruled.

C.      Discussion

        Texas Rule of Evidence 704 provides that: “Testimony in the form of an opinion

or inference otherwise admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact.” TEX. R. EVID. 704; see Ex parte Nailor, 149 S.W.3d

125, 134 (Tex. Crim. App. 2004); Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App.

2001); Fairow v. State, 943 S.W.2d 895, 897 n.5 (Tex. Crim. App. 1997) (noting that “it is

no longer permissible to exclude opinion testimony” simply because it embraces an

ultimate issue); see also Bryant v. State, 340 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). Furthermore, Texas Rule of Evidence 701 permits a lay witness to offer

opinion testimony if that opinion is “(a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” TEX. R. EVID. 701.

        Based on our review of the record, we cannot say that the trial court abused its

discretion in denying Rabe’s objections to the complained-of testimony of Officers

Elmore and Houk. See Martinez, 327 S.W.3d at 736; McDonald, 179 S.W.3d at 576; see also

TEX R. EVID. 701, 704. Indeed, a review of Texas Rule of Evidence 704 shows that the

pertinent objections in this case are “not objectionable.”         See TEX. R. EVID. 704.

Moreover, it is noteworthy that both Officers Elmore and Houk were factual

eyewitnesses who bore the brunt of Rabe’s aggression that evening. In other words, we

conclude that the complained-of testimony was rationally based on the perceptions of

Officers Elmore and Houk as witnesses to the events and was helpful in clarifying their

Rabe v. State                                                                          Page 6
testimony to determine a fact in issue—whether Rabe’s actions amounted to resisting

arrest. See id. at R. 701. Therefore, the complained-of testimony was admissible under

both Texas Rules of Evidence 701 and 704. See id. at R. 701, 704. And the fact that the

complained-of testimony embraced the ultimate issue of whether Rabe resisted arrest

does not render the testimony inadmissible. See id. at R. 704; see also Ex parte Nailor, 149

S.W.3d at 134; Solomon, 49 S.W.3d at 364; Fairow, 943 S.W.2d at 897 n.5; Bryant, 340

S.W.3d at 11.

        And even if the complained-of testimony was inadmissible, we note that Officer

Houk also testified to the following:

        Q [The State]:             Was Mr. Rabe actively resisting Officer Elmore
                                   at this point, on the ground?

        A [Officer Houk]:          Yes, he was.

        Q:                         Okay. How, from your recollection?

What is apparent from this exchange is that Rabe did not contemporaneously object or

obtain a running objection, though this testimony is substantively the same as the

earlier complained-of testimony.

        Under Texas law, a party must continue to object each time inadmissible

evidence is offered unless counsel has obtained a running objection or made a proper

objection in a hearing outside the presence of the jury—neither of which transpired

here. See Haley v. State, 173 S.W.3d 510, 516-17 (Tex. Crim. App. 2005); Martinez v. State,

98 S.W.3d 189, 193 (Tex. Crim. App. 1993); see also TEX. R. EVID. 103(a)(1). Moreover, any

error in admitting evidence is cured when the same evidence is admitted elsewhere


Rabe v. State                                                                         Page 7
without objection. See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); see also

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Therefore, even if the

complained-of testimony was inadmissible, any error in the admission of the testimony

was cured because it was admitted elsewhere without objection. See Lane, 151 S.W.3d at

193; see also Leday, 983 S.W.2d at 718. And based on the foregoing, we overrule both of

Rabe’s issues on appeal.

                                    III.   CONCLUSION

        Having overruled both of Rabe’s issues on appeal, we affirm the judgment of the

trial court.




                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 7, 2015
Do not publish
[CR25]




Rabe v. State                                                                       Page 8
