                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-013-CR


KATHRYN ANN VANDERBURGH                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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            FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one point, Appellant Kathryn Ann Vanderburgh asserts that the trial

court erred by taking into account evidence of a homicide while determining her

sentence for a DWI conviction. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                        II. Factual and Procedural History

         Vanderburgh   was    indicted   for   the   offense   of   driving   while

intoxicated—felony repetition, to which she pleaded guilty without a plea

bargain.      The trial judge acknowledged having read the presentence

investigation report, and Sergeant Chris Reed and Corporal Eric Chambless of

the Haltom City Police Department and Vanderburgh testified at the punishment

trial.

         Sergeant Reed testified that in March 2007, he responded to two 911

calls concerning a reported drunk driver at a local fast-food restaurant. Upon

his arrival, Sergeant Reed observed Vanderburgh erratically driving her vehicle

around the restaurant and onto the sidewalk, her vehicle straddling the narrow

curb that divided the drive-through lane from the adjoining property.

Specifically, he testified that she was driving like she was in one of the toy cars

at a Six Flags amusement park, “[the one] that you ride but you don’t really

have to steer because they just bounce along on a track.”           Sergeant Reed

conducted a DWI investigation and described Vanderburgh as barely able to

stand and “extremely intoxicated.” He testified that it was apparent that she

had defecated in her pants.

         At one point during the stop, Vanderburgh stated to Sergeant Reed that

she needed to go home because she thought her roommate was dead.

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Sergeant Reed asked her why she thought that, and she replied, “Well, I just

think that she is.” When Sergeant Reed asked her if someone should be sent

to the apartment to assist her roommate, she replied, “No.” Sergeant Reed

testified that he assumed these statements were just the rambling of a highly

intoxicated person. He also noted that Vanderburgh had light burns about her

face 2 and did not know how she was able to operate her car without hitting

something or someone because of her condition. Instead of taking Vanderburgh

into custody, he released her to an ambulance.

      The next day, Sergeant Reed was dispatched to assist in a death

investigation at Vanderburgh’s apartment. He testified that Vanderburgh had

asked a neighbor to check on her roommate’s condition, and the neighbor

discovered that she was dead, with a gunshot wound to the chest; the police

were called. Sergeant Reed spoke with Vanderburgh again, who appeared to

be in the same intoxicated condition she had been in the night before. He also

noticed that Vanderburgh was still wearing the same pants from the night

before. On cross-examination, Sergeant Reed testified that Vanderburgh had

been “no billed” by a Tarrant County grand jury for any charges resulting from

the death of her roommate.



      2
         … Vanderburgh testified that the burns on her face occurred when she
lit a cigarette and “it just kind of blew up in [her] face.”

                                      3
      Corporal Chambless testified that it was apparent that Vanderburgh’s

roommate died from a single gunshot wound to the chest. He found the body

on the floor, next to the bed in the single-bedroom efficiency apartment. He

interviewed Vanderburgh at the police department and stated that she told him

that after arriving at the hospital the previous evening, she removed her IV,

which accounted for some blood on her clothing, left the hospital, took a taxi,

and went home.3       At some point, she went out, bought more wine, and

continued drinking.     Corporal Chambless testified that he understood that

Vanderburgh had gone to a neighbor to find out if her roommate was dead and

then the police were called.

      Corporal Chambless confirmed that Vanderburgh was “no billed” from any

offense surrounding the death of her roommate. On cross-examination, he

testified that, in his opinion, the grand jury was incorrect in deciding to “no bill”

Vanderburgh     for   her   roommate’s    homicide,   that   he   did   not   believe

Vanderburgh’s version of events surrounding the death of her roommate, and

that the case was now closed and no longer under investigation.

      Vanderburgh described herself as a fifty-seven year old alcoholic—a binge

drinker who had battled alcohol dependency for years. She testified that she



      3
      … Vanderburgh testified that she was drunk during the interview with
Corporal Chambless and did not remember the entire interview.

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binge-drank as a result of pain from a broken shoulder but that she “suppose[d]

there’s no excuse” to binge drink. 4 At the time of her arrest, she weighed

under 100 pounds and her blood alcohol content (“BAC”) was .30; she agreed

that at a BAC level of .40, she would have been dead.

      Vanderburgh testified that she had five prior DWI convictions, three in

Texas and two in California, the first in 1993, and that her numerous attempts

at completing alcohol abuse rehabilitation programs in various places over a

period of years had not been successful. She took “Antabuse” to try to prevent

her drinking from 1994 to 2002, as a condition set by her then-husband to

sustain their marriage. She spent twenty-eight days at a rehab center in the

Hurst-Euless-Bedford area in 1993, participated in the EXCEL alcohol treatment

program at Timber Lawn in Dallas for a few months in 1994, went to rehab in

Pennsylvania for several weeks in October 2003, and spent sixteen months in

New Jersey in rehab.      She had also been sent to a mental hospital in

Massachusetts at one point because she had threatened to commit suicide.

She received counseling for her alcohol problem while on probation for DWI in

2005 and 2007.




      4
       … She also testified about a number of other physical problems that she
had, including osteoporosis, pleurisy, and serious eye problems.

                                      5
      Vanderburgh told the trial judge that she did not see a solution to her

alcoholism and admitted that there was no question but that she was guilty as

charged in this case.   On cross-examination, Vanderburgh also admitted to

being on a Tarrant County DWI probation at the time she committed the present

DWI offense in Parker County, denied having any memory about how her

roommate got shot, confirmed her actions surrounding her roommate’s death

as related by the State’s witnesses, and stated that at the time, she was “so

drunk [she] didn’t even know [the roommate] was dead.”

      Vanderburgh asked for a probated sentence with extensive inpatient

alcohol treatment. The State asked for a sentence of between eight to ten

years.   The trial judge stated that based on Vanderburgh’s numerous failed

attempts to treat her alcohol problem, he had to protect the community by

keeping her off the highway. He then sentenced Vanderburgh to eight years’

confinement. This appeal followed.

                          III. Punishment Evidence

      Vanderburgh posits her sole issue as follows: “In this case the Appellant

is not objecting to the sentence imposed, which is within the statutory limits

for the offense; but rather is objecting to the manner in which it was arrived

at,” referring to the evidence admitted concerning her roommate’s death. The

State responds that Vanderburgh failed to preserve her issue for review because

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she failed to object at trial and that Vanderburgh waived any error because the

evidence she complains of now was also admitted in various places without

objection.

A. Standard of Review

      While our review of a trial court’s admission or exclusion of evidence is

under the abuse of discretion standard, including extraneous offense evidence

during the punishment phase of a trial, Mitchell v. State, 931 S.W.2d 950, 953

(Tex. Crim. App. 1996); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim.

App. 1993), a complaining party must preserve a complaint for our review, that

is, they must have presented to the trial court a timely request, objection, or

motion that states the specific grounds for the desired ruling if they are not

apparent from the context of the request, objection, or motion. Tex. R. App.

P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998)

(op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Further, the trial court

must have ruled on the request, objection, or motion, either expressly or

implicitly, or the complaining party must have objected to the trial court’s

refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334,

341 (Tex. Crim. App. 2004).

      Additionally, an objection must be made as soon as the basis for the

objection becomes apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942

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S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk

v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). And to preserve error,

a party must continue to object each time the objectionable evidence is offered.

Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528

U.S. 1026 (1999); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim.

App. 1991). A trial court’s erroneous admission of evidence will not require

reversal when other such evidence was received without objection, either

before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718

(Tex. Crim. App. 1998); Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim.

App. 1990), cert. denied, 501 U.S. 1259 (1991), overruled on other grounds

by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991).           This rule

applies whether the other evidence was introduced by the defendant or the

State. Leday, 983 S.W.2d at 718.

B. Trial Testimony

      The following evidence was admitted without objection during the

punishment phase of Vanderburgh’s trial.

Cross Examination (Sergeant Reed)

      Q. Officer, is this the same situation on March 3 of 2007, that Ms.
      Vanderburgh was no billed for a murder charge?

      A. Yes, that’s correct.



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           ....

Direct Examination (Corporal Chambless)

     Q. Okay. Did you respond to the death investigation [Sergeant
     Reed] was taking about?

     A. I did.

     Q. All right. And when you got out there, did you meet Ms.
     Vanderburgh?

     A. I did.

     Q. And did you get a chance to go through the crime scene?

     A. I did.

           ....

     Q. . . . . [W]ho was the deceased person?

           ....

     A. I believe her name was Becky Mooney.

     Q. All right. We’ll just call her Becky if that’s all right. Where was
     Becky when you found her?

     A. On the floor next to the bed.

     Q. In the one and only bedroom?

     A. Yes.

     Q. All right. And did you find that she had been shot?

     A. Yes.



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           ....

     Q. . . . . Where was she shot on her person?

     A. Just above her left breast.

     Q. Okay. And where—what was the location where she had been
     shot, if you could tell?

     A. On the bed.

     Q.  All right.  Did you have a chance to speak with Ms.
     Vanderburgh about the death of her roommate?

     A. I did.

           ....

Direct Examination (Corporal Chambless)

     Q. Corporal Chambless, just so that the time line’s clear for the
     court, from what you understand, her roommate is shot, however
     that happens, and then the defendant Ms. Vanderburgh goes out,
     is arrested for DWI and then sent to the hospital instead of being
     taken to jail, and then she gets out, comes back home, and the
     neighbor gets contacted, I guess, by the defendant to find out if
     her roommate’s dead, according to the defendant, and then you all
     come out there; is that pretty much it?

     A. Yes.

     Q. Okay. And as counsel asked Sergeant Reed, that case actually
     was no billed by the Tarrant County grand jury?

     A. Yes.

           ....

Cross Examination (Corporal Chambless)

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     Q. Is there any new evidence that’s come to light since March of
     ‘07 that could help us determine if she did commit a murder or not?

     A. That case has been closed and I’m no longer investigating it.

           ....

Cross Examination (Vanderburgh)

     Q. And whatever happened, at some point you got intoxicated,
     and at some point you’re holding a gun, and somehow it goes off
     and she gets shot, right?

     A. I don’t really know what happened. . . . And I don’t know
     what happened.       And maybe I—I don’t know.      But if I’m
     responsible, by golly, I will—I would do anything. Anything. I
     take responsibility for what I do. And it’s—

     Q. Let me ask you this, regardless—regardless of whether you
     shot her, she shot herself, whatever happened, when you left your
     apartment there, okay, and you went out, you knew you were
     drunk, right?

     A. Yes.

           ....

     Q. . . . . Wouldn’t you agree that [her conduct related to the roommate’s
     death] should have been a wake-up call, something that made you stop
     drinking, sit up and go, “Oh my God, I’ve got to stop doing this[?]” . . .

     A. I don’t know, sir. It was a horrible thing. I’ve never been
     around anybody who was dead. And I was so drunk I didn’t even
     know she was dead. And to think that I was in the apartment with
     someone that was dead is beyond my imagination.

     Q. Okay. But you actually left her there, as you thought she was
     dead, and went out and got a DWI, right?



                                     11
     A. All of that is not clear to me. I know it was—that was heard
     today, but it was not clear to me.

     Q. Okay. Would you disbelieve the officer if he said that he—that
     you told him that you had a friend that you left home and thought
     she was dying or you remember dying?

     A I think he said that I thought she was dead. And I don’t know
     why I would say that.

     Q. But in fact it was true.

     A. Yes, it was true.

              ....

     Q. Do you know how long it was after you got back there to the
     apartment and started drinking again that you finally went up and
     got your neighbor to find out if Becky had passed away?

     A. Those are not the details. As soon as I got back, I started
     drinking again, I believe. And uh—I don’t know exactly what time
     it was the next afternoon. And there was a knock on the door.
     And I asked the woman to check on her. I didn’t go get the
     neighbor. I asked her to check on her. And then I asked her to call
     the police because I didn’t have a telephone.

     Q. So if she didn’t come downstairs and knock on your door,
     there’s no telling how long it would have been before you notified
     somebody that your roommate was laying there in your apartment
     dead.

     A. That’s possible. I don’t know.

C. Analysis

     It is readily apparent that the record is replete with evidence of

Vanderburgh’s roommate’s death, its investigation, and her no-bill from the

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grand jury and that her trial counsel made no objection to any of it. Therefore,

Vanderburgh failed to preserve her issue for review. We overrule her sole issue.

                                IV. Conclusion

      Having overruled her sole issue, we affirm the trial court’s judgment.




                                           PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2009




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