Affirmed as Moditied; Opinion Filed Novemhcr 14, 2012.




                                                                 In The
                                            tnurt nf Appiata
                                   .Fift1i )hürirt nf Irxa at a1Ia
                                                       No. 05-i 1-00410-CR
                                                       No. 05-11-00411-CR
                                                       No. 05-1 1-00412-CR


                                            THOMAS FRIZZEEL, Appellant

                                                                    V.

                                           THE STATE OF TEXAS, Appellee


                           On Appeal from the Criminal District Court No. 6
                                         Dallas County, Texas
                  Trial Court Cause Nos. F09-41465-X, F10-41270-X, and F10-63575-X


                                                            OPINION
                                     Before Justices Moseley, Fillmore, and Myers
                                              Opinion By Justice Myers

           Appellant pleaded guilty to aggravated assault involving family violence by causing serious

bodily injuiy using a deadly weapon,’ assault involving family violence by impeding breathing,
                                                                                    2 and

aggravated assault with a deadly weapon.
                                 3 He was sentenced to three concurrent terms of five years

in prison. In two points of error, he contends (I) the trial court abused its discretion by allowing the




       Cause number 05-1 1-00410-CR; trial court cause number F09-41 465-X.

   2
       Cause number 05-1 1-00411-CR; trial court cause number Fl 0-41 270-X.


       Cause number 05-I 1-00412-CR: trial coui cause number F10-63575-X.
complainant to testify regarding matters that v crc. according to appellant,       outside of   her   personal


knowledge (2) the     court’s   judgment   in   cause 05— I 1 —0041 I —CR should he modified to reflect the

correct statute   under which appellant was convicted           As moditied. we affirm the trial       court’s


judgments.

                                                  DISCUSSION

                                       Complainant ‘s Testimony


        In his first point, appellant contends the trial court abused its discretion by allowing the

complainant to testify regarding matters that were, according to appellant, outside of the

complainant’s personal knowledge.

        During the punishment hearing, the complainant testified that she had been in a relationship

with appellant since 2000, when she was fifteen years old. They were married in February of 2004,

and a suit for their divorce was filed in December of 2009. At the time of trial in March of 2011,

they were separated and their divorce case was still pending.

        In October of 2009. the complainant and appellant got into an argument regarding a telephone

call the complainant made to a woman she believed her husband “was having a relationship with.”

Appellant became upset and strangled the complainant until she lost consciousness. When the

complainant regained consciousness, appellant strangled her again until she lost consciousness. The

choking left the complainant with red marks on her neck and broken blood vessels around her eyes.

        The complainant was eventually able to leave the house and contact the police. She then

went back to the house to get her two children, and they went to a shelter. After staying in the shelter

for approximately one to two weeks, appellant moved out of their house, and the complainant and

the children went back to the house.

       In March of2OlO, appellant accused the complainant of cheating on him, and he choked her.
lhe complainant did not lose consciousness on this occasion, but her neck was sore the following

day. Latcr that month, when the complainant went to appellant’s residence to pick up her children.

appellant accused her ol cheating on him and followed her in his vehicle when she drove away.

Appellant pursued the complainant and repeatedly “rammed” her car. While trying to escape, the

complainant collided with another vehicle and “totaled her car. The complainant testified that she

was trying to get away from appellant because she was afraid he would kill her if she stopped.

       The complainant also testified that appellant had started an escort service after he lost hisjob.

and that he asked the complainant to participate. Appellant recruited up to five or six women for the

escort service, which was in business for about one year. The complainant worked for the escort

service both before and after she separated from appellant, until she finally stopped working for him

in April of 2010. By the time of trial, the complainant was no longer involved in the escort service

because she “didn’t want to live that kind of life anymore.” The coniplainant said she still feared

appellant and would not feel safe it he were placed on probation because she believed he had “a lot

of resentment towards me, and I think that he would try to hurt me.”

       On cross-examination, the complainant agreed that her relationship with appellant had been

“rocky” as far back as 2000, when she was still in high school. The complainant also admitted that

she had started some of the fights she had with appellant, but she insisted she was “okay” when she

and appellant were not together.

       On redirect examination, the complainant testified that she and appellant continued to talk

to one another between the two incidents, which took place in October of 2009 and March of 2010,

principally because of their two children but also because the complainant worked for appellant at

the escort service “[ojff and on.” She also testified that appellant was jealous of her relationships

with other men and had installed some sort of ‘spyware” on her computer “so that he could read all




                                                 —3—
of my emails.” I)el’ense counsel twice ohectcd that the prosecutor was leading the witness, hut

otherwise rlid not object to this testimony. On re—cross—examination, defense counsel challenged the

complainant’s testimony that appellant was jealous and had been reading her c—mails. On further

redirect, the prosecutor asked the complainant “about the thct that the l)cfendant was jealous even

though he was essentially your pimp. Can you explain that to the Judge?     ihe complainant replied

that appellant

        had separated this business and me having a personal relationship or moving on to
        a significant relationship, and I think he separated that. And it was so different to
        him that he became jealous if he thought that I was starting a—

Defense counsel then objected, “[Tlhis is pure speculation on her part.       Unless she has actual

personal knowledge ot’ that.” The trial court overruled the objection.

        An appellate court reviews a trial court’s ruling on the admission of evidence for an abuse

of discretion. Wa/lees v.   Slate.   247 S.W.3d 204. 217 (Te. Crim. App. 2007). Only if the court’s

decision lies “outside the zone of reasonable disagreement will we conclude an abuse of discretion

occulTed. 1(1.

        Appellant argues the trial court abused its discretion by allowing the complainant to testify

(I) that appellant was jealous of her relationships with other men, and (2) that appellant installed

some sort of spyware on her computer, because the record shows, according to appellant, that the

witness did not have the requisite personal knowledge to testify about either matter. Appellant cites

rule 602 of the Texas Rules of Evidence. which prohibits a witness fi’om testifying about matters

without sufficient evidence to support a finding that the witness has personal knowledge of the

matter. TEx. R. EvID. 602. The State responds that the error was not preserved, the court did not

abuse its discretion, and that the error, if any, was harmless.

       In order to argue on appeal that a trial judge erred by admitting evidence, the error must be




                                                   -4-
preserved through a proper objection. Martinez v. State, 98 S.W,3d 189, 193 (Tex, Crim. App.

2003);   Ethington   v, State, 819 S,W,2d 857, 858 (Tex. Crim, App.199l). A properobjection is one

that is specific and timely. Martinez, 98 S.W.3d at 193: Ethington, 819 S.W.2d at 858. To be

timely, the objection should, if possible, be made before the evidence is actually admitted.

Ethington,   819 S.W,2d at 858. “If this was not possible, the defense must have objected as soon as

the objectionable nature of the evidence became apparent.” Id. A defendant also is required to

object each time the evidence is offered unless (1) defense counsel obtains a running objection; or

(2) defense counsel lodges the objection and obtains a ruling to the objectionable evidence in a

hearing requested by defense counsel outside of the jury’s presence. Id. at 858-59.

         In this case, however, appellant did not object regarding speculation or rule 602 when the

complainant first testified on redirect about the two matters in question. Appellant’s trial counsel

also cross-examined the complainant regarding both matters without lodging an objection. Appellant

does not offer any justification for the late objection, which never mentioned rule 602, and he neither

obtained a running objection nor requested a hearing. As a result, the error, if any, was not preserved

for appellate review.

         Furthermore, even if appellant preserved error and the trial court erred by admitting the

evidence, any resulting error was harmless. Improper admission of evidence is non-constitutional

error that we disregard unless the error affected an appellant’s substantial rights. TEx. R. APP. P.

44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). Under rule 44.2, an

appellate court may not reverse for nonconstitutional error if the court, after examining the record

as a whole, has fair assurance that the error did not have a substantial and injurious effect or

influence in determining a defendant’s conviction or punishment. SeeAnderson v. State, 182 S.W.3d

914, 919 (Tex. Crim. App. 2006); Aguirre—Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App.




                                                 —5—
2003). When conducting a rule 44.2(b) harm analysis, overwhelming evidence ofa defendant’s guilt

is one factor to be considered. Moth/a   i’.   State, 78 S.W.3d 352, 357 (Tex. Corn. App. 2002).

        In the instant case, the effect of the complained—oftestimonywas not substantial or injurious.

Appellant pleaded guilty to the charged offenses, admitting he committed two aggravated assaults

and one assault against the complainant, his estranged wife. The complainant testified that appellant

choked her into unconsciousness twice, choked her again on another occasion, and rammed her car

repeatedly, causing her vehicle to collide with another car. The testimony regarding appellant’s

jealousy and spying on the complainant’s computer would not have had a substantial and injurious

effect or influence on appellant’s punishment, given the record in this case. As a result, the error,

if any, was harmless. We resolve appellant’s first point of error against him.

                      Refi)rmatio,z of.Judgment       in Cause 05-11-00411-CR

        In his second point, appellant claims that the judgment in cause number 05—I 1—00411—CR,

which was the conviction for assault involving family violence by impeding breathing, should be

reformed to reflect the correct statute of the offense under which appellant was convicted. The

judgment incorrectly states that appellant was convicted in cause 05-1 1-00411-CR of an offense

under section 22.02 of the Texas Penal Code, which is the aggravated assault statute, The record,

however, shows appellant was convicted under § 22.0 1(b)(2)(B), which pertains to assault involving

family violence by impeding breathing or circulation. The State agrees the judgment should be

reformed to reflect the colTect statute. See TEx. PENAL CODE ANN.       § 22.0 l(b)(2)(B).
       This Court has the authority to modify or reform a judgment to make the record speak the

truth when the matter has been called to its attention. TEx. R. API>. P. 43.2(b); French v. State, 830

S.W.2d 607, 609 (Tex. Crim. App. 1992); Asbeir               v. State, 813 S.W.2d 526, 531 (Tex.

App.—Dallas 1991, pet. ref’d). Accordingly, we reform thejudgrnent in cause 05-11-00411-CR to




                                                   —6—
reilect that the statute for the ottense is   2() I (b)( 2 )( B).

        i\s niodi lied, wealhrm the trial courts judgments,




                                                           LANA MYERS
                                                           J (iS liCE
Do Not Pubhsh
Tix. R .A ii. P. 47
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                                  (!.,tuirt nf     iprt1i
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                                      JUDGMENT
THOMAS FRIZZELL, Appellant                        Appeal from the Criminal District Court No.
                                                  6 of Dallas County, Texas. (Tr.Ct.No. F09-
No. 051 l-004l0-CR          V.                    41465-X).
                                                  Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS. Appellee                      Moselev and Fillmore participating.


      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRi1ED.




Judgment entered November 14, 2012.




                                                  LANA MYERS
                                                  JUSTICE
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                        FifiI! Thtrirt Lii          1XZt!i it   JZt11t5

                                       JUDGMENT
THOMAS ERIZZELL, Appellant                          Appeal from the Criminal District Court No.
                                                    6 of Dallas County, Texas. (Tr.Ct.No. FlO
No. 05l U0041 I-CR           V.                     41 270-X).
                                                    Opinion delivered by Justice Myers, Justices
THE STATE OF TEXAS, Appellee                        Moseley and Fillmore participating.


        Based on the Court’s opinion of this date, the judgment of the trial court is REFORMED
as follows:

       The portion of the judgment entitled “Statute for Offense” is modi fLed to show the
       stItutL tot thL otlense a SLctlon 2 01 (h)(2)( B) ot thL I x s PLn l C ode

       As   modified, the judgment is AFFIRMED.




Judgment entered November 14. 2012.




                                                    LANA YERS
                                                    JUSTICE
                                        0
                              (nurt tif Appithi
                      FiftI! DiIrirt uf trxas Lit

                                      JUDGMENT
THOMAS FRIZZELL, Appellant                        Appeal from the Criminal District Court No.
                                                  6 of Dallas County, Texas, (Tr.Ct.No. FlO
No. 05-I 1-00412-CR         V.                    63575-X).
                                                  Opinion delivered by Justice Myers, Justices
THE STATE OF TEXAS, Appellee                      Moseley and Filimore participating.


      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered November 14, 2012.




                                                 LANA YERS
                                                 JUSTICE
