                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-10-00307-CR

TRENA EVETTE MITCHELL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                            From the 19th District Court
                             McLennan County, Texas
                            Trial Court No. 2010-149-C1


                                     OPINION


       Trena Evette Mitchell was found guilty of the offense of Manslaughter and

sentenced to 12 years in prison. TEX. PENAL CODE ANN. § 19.04 (West 2011). We affirm

the judgment of the trial court.

                                         ISSUES

       During the course of the trial, evidence regarding some aspect of insurance was

offered, objected to, and then admitted. In addition to two issues regarding insurance,
Mitchell complains about the exclusion of her aunt from the punishment phase of the

trial.

                                      THE OFFENSE

         Richard Schroeder was riding his Harley Davidson motorcycle down Lake Shore

Drive in Waco, Texas to a charity auction after lunch on December 12, 2009. He was

wearing a Santa hat. At the intersection of Lake Shore Drive and Martin Luther King,

Jr. Blvd., a brown Honda car, driven by Mitchell, made a left turn crossing in front of

Schroeder onto Martin Luther King, Jr. Blvd. Schroeder’s motorcycle hit the car in the

back passenger area.     Schroeder was thrown from his motorcycle.         He died from

internal injuries.

                               SUMMARY OF THE EVIDENCE

         Although the sufficiency of the evidence to support the conviction is not

challenged in this appeal, we believe that, due to the nature of the offense and the issues

raised on appeal, a more detailed recitation of the facts is necessary to give the reader a

better overall view of the evidence presented to the jury. The primary issue in this case

is whether the trial court erred in allowing the State to ask the insurance claims

representative if she had made a determination of liability. This summary will first

present what testimony had been heard prior to this question and the claims

representative’s answer. What was heard after the question and answer will then be

presented.


Mitchell v. State                                                                    Page 2
Testimony prior to the question

        Schroeder’s wife, Mary, was following Schroeder in her vehicle. A couple of

other vehicles were between her and Schroeder.           As Schroeder approached the

intersection of Lake Shore Drive and Martin Luther King, Jr. Blvd., Mary saw that the

light was green. She thought Schroeder had made it through the intersection before the

car turned and then she heard a pop. She thought another car had been hit, but when

she proceeded through the intersection, she saw that it was Schroeder involved in the

collision.

        Randy McLaughlin was in the first vehicle at the light on Martin Luther King, Jr.

Blvd. where it intersects with Lake Shore Drive. His light was red and from his vantage

point, he could tell that traffic was flowing both directions on Lake Shore Drive through

the intersection. When Schroeder hit Mitchell’s car, the car spun around and ended up

hitting the side of McLaughlin’s vehicle.        Based upon his familiarity with the

intersection, McLaughlin believed that Mitchell did not have a green arrow when she

turned from Lake Shore Drive to Martin Luther King, Jr. Blvd.

        Mitchell’s two daughters and a baby were in the car with Mitchell at the time of

the collision. Mitchell and her daughters told police at the scene that Mitchell had a

solid green light when she turned. Mitchell also told police that she did not know

where the motorcycle had come from. After the collision occurred, one of Mitchell’s

daughters called Mitchell’s husband, Gregory. Although he was not present at the


Mitchell v. State                                                                  Page 3
scene, Gregory testified at trial that he heard over the cell phone Mitchell and their

daughters say that Mitchell had a green arrow.            Ultimately, Mitchell was issued

citations at the scene for no driver’s license and for failure to yield the right of way.

        Mitchell gave a statement to police three days after the collision stating she had a

green arrow when she turned. She also said in her statement that she had never had a

driver’s license and had never applied for one because she had been told she was

legally blind. Mitchell had special glasses made for her but was not wearing the glasses

on the day of the collision. Gregory stated at trial that Mitchell did not wear the glasses

because they were broken. He also believed she did not need them for distance, only

for up close reading.

Testimony after the question

        Kevin Powell, who was behind Schroeder a few car lengths on Lake Shore Drive

at the time of the collision, had no doubt that the light was green when Schroeder

proceeded through the intersection. Powell said the car turned so suddenly in front of

Schroeder that Schroeder had no time to swerve, brake, or do anything.

        Mitchell’s daughters testified at trial that Mitchell had a green arrow when

Mitchell turned left onto Martin Luther King, Jr. Blvd. But Jeremy Hendricks, a traffic

analyst for the City of Waco, stated that if Schroeder had a green light, Mitchell could

not have had a green arrow; rather, she would have had a solid green light.




Mitchell v. State                                                                       Page 4
        Further, Debbie Ann Rivera, who worked for the Division for Blind Services,

stated that the glasses issued to Mitchell were like binoculars so that Mitchell could

focus at a distance.

                                  RULE 411—INSURANCE

        Because it has some bearing on her second issue, we first discuss Mitchell’s third

issue in which she complains that the trial court erred in allowing evidence of her

insurance coverage to be admitted when such evidence is specifically prohibited by

Rule 411 of the Texas Rules of Evidence. Rule 411 provides:

        Evidence that a person was or was not insured against liability is not
        admissible upon the issue whether the person acted negligently or
        otherwise wrongfully.

TEX. R. EVID. 411.

        Mitchell’s husband, Gregory, was called as a witness by the State. When the

State sought to introduce two insurance policies acquired by Gregory, one in effect prior

to the collision and one in effect at the time of the collision which covered the car

Mitchell was driving, Mitchell objected. The State, however, had previously elicited

testimony, without objection, from Gregory that the car was covered by insurance. The

State had also previously elicited testimony without objection from Schroeder’s wife,

Mary, that she had to deal with State Farm, Mitchell’s insurance company, after

Schroeder’s death.




Mitchell v. State                                                                   Page 5
        As a prerequisite to presenting a complaint for appellate review, the record must

show that the complaint was made to the trial court by a timely request, objection, or

motion. TEX. R. APP. P. 33.1. "An error [if any] in the admission of evidence is cured

where the same evidence comes in elsewhere without objection." 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) ("Our rule . . . is that overruling an objection to evidence will not

result in reversal when other such evidence was received without objection, either

before or after the complained-of ruling.").

        Mitchell did not object when first Mary and then Gregory testified about

insurance coverage. Accordingly, error, if any, in admitting the insurance policies was

cured. Mitchell’s third issue is overruled.

                              DETERMINATION OF LIABILITY

        In her second issue, Mitchell contends the trial court erred in allowing the State

to introduce evidence that Mitchell’s insurance company had conducted an

investigation and determined she was at fault. Mitchell argues that the determination

of fault by the insurance company was irrelevant and ‚highly prejudicial.‛

        Kiley Clark, a claims representative with State Farm Insurance, was called by the

State and testified about the insurance policy covering the car involved in the collision.

By this time, Mitchell’s husband had already testified that the car Mitchell was driving

was covered by insurance. Clark explained that although Mitchell was not a listed


Mitchell v. State                                                                   Page 6
driver on the insurance policy, she was a covered driver. Clark then discussed her

investigation of the collision. She stated that she spoke with Mitchell and relayed to the

jury Mitchell’s side of the story. Clark also reviewed the police report and had an

independent investigator interview the police officer. Clark relayed to the jury what

was stated in the report and what the officer told the independent investigator. Clark

also interviewed Randy McLaughlin, the driver of the third vehicle involved in the

collision and told the jury what McLaughlin said he had seen.

        Clark was then asked,

        Without getting into what the sequence of the lights was, did you then
        determine liability based on what Randy McLaughlin said who was here,
        based on what Trena Mitchell had told you, and based on everything the
        officer said?

She answered, ‚Yes.‛ But before Clark could completely explain her answer, Mitchell

objected, stating, ‚Whether or not she determines liability based on what she read has

no relevance in this particular case. It’s highly prejudicial as far as what she’s going to

testify to.‛ The objection was overruled, and Clark stated that based on the evidence

and the seriousness of the injuries, State Farm decided to accept liability and take care

of the damages under the policy.

Ex parte Wheeler

        Mitchell relies solely on the Court of Criminal Appeals’ opinion in Ex parte

Wheeler for the proposition that the question asked by the State was irrelevant and

highly prejudicial. See Ex parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006). In
Mitchell v. State                                                                    Page 7
Wheeler, the underlying trial was long and grueling, and fault was hotly contested. The

State’s expert determined the defendant to be at fault while the defense expert

determined the victim to be at fault. After 3 hours of cross-examination, the State asked

the defense expert on re-cross, ‚Are you aware that *the defendant’s+ insurance carrier

found her at fault?‛ When the defendant’s counsel asked to approach the bench, the

trial court sent the jury out of the courtroom. And after pondering the issue over the

weekend, the trial court granted the defendant’s motion for mistrial. Before the next

trial, the defendant filed a pretrial writ of habeas corpus claiming a double jeopardy

violation. The trial court denied the relief requested by the writ, but the intermediate

appellate court reversed that determination. On further review, the Court of Criminal

Appeals reversed the intermediate appellate court and affirmed the trial court’s

decision to deny the writ.

        In route to its decision to reverse the intermediate appellate court’s judgment, the

Court of Criminal Appeals agreed with the intermediate appellate court that the

question posed by the State about the defendant’s expert’s knowledge of the

determination of fault by the defendant’s insurance company was manifestly improper

and stated that the question was ‚clearly barred by Rules 401-403.‛ Id. at 324. The

Court went on to say that what the insurance carrier concluded had very little probative

value on the question of whether the defendant caused the fatal collision, was extremely

prejudicial, and was the type of evidence Rule 403 was designed to exclude. Id. at 324-


Mitchell v. State                                                                     Page 8
325.    The Court then agreed with the intermediate appellate court that the prejudice

from the prosecutor’s improper question could not be cured by an instruction to

disregard. Id. at 325.

        The intermediate appellate court in Wheeler, however, was deciding whether the

prosecutor had goaded the defendant into requesting a mistrial, thus setting up a

double jeopardy bar to retrial, and did not need to fully analyze the question asked by

the State with regard to Rules 401, relevance, and Rule 403, prejudice. It was the

intermediate appellate court’s double jeopardy analysis that the Court of Criminal

Appeals reviewed.

        We certainly have no quarrel with the Court of Criminal Appeals regarding the

propriety and prejudicial nature of the question asked by the State in its review and

application to a double jeopardy claim.        However, the situation in this case is

significantly different for a number of reasons. First, we are not conducting a double

jeopardy analysis. Second, the fact that Mitchell was covered by insurance had already

been disclosed by two witnesses without objection. Third, the State did not ask a

witness not associated with the insurance company investigation whether that witness

knew the insurance company had found Mitchell to be at fault. Rather, the State asked

the insurance claims representative whether she had determined liability. And, finally,

in Wheeler, the Court of Criminal Appeals impliedly, if not expressly, left open the issue

of relevance of this type question when it stated, ‚… the insurance company’s ultimate


Mitchell v. State                                                                   Page 9
act of conceding liability is barely (if at all) probative of appellant’s ‘fault’ in causing the

accident.‛ Id. at 325. The relevance and improper prejudicial effect, if any, of that type

of question when asked of the person who had actually conducted the investigation are

what we have to decide in this case. Therefore, we will conduct a full analysis of the

specific question asked by the State in light of the record as it existed at that time and

the objections made by Mitchell under the appropriate standards for our review.

Standard of Review

        We review a trial court's Rule 401 and 403 decisions for an abuse of discretion.

Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). A reversal will occur only if

the trial court’s decision is outside the zone of reasonable disagreement. Salazar v. State,

38 S.W.3d 141, 150 (Tex. Crim. App. 2001). Further, if the trial court's evidentiary ruling

is correct under any applicable theory of law, it will not be disturbed even if the trial

court gave a wrong or insufficient reason for the ruling. Sewell v. State, 629 S.W.2d 42,

45 (Tex. Crim. App. 1982).

Relevance

        Rule 401 defines "relevant evidence" as evidence having any tendency to make

the existence of a fact of consequence more or less probable than it would be without

the evidence. TEX. R. EVID. 401; see also Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.

App. 2006). Evidence need not by itself prove or disprove a particular fact to be

relevant; it is sufficient if the evidence provides a small nudge toward proving or


Mitchell v. State                                                                        Page 10
disproving some fact of consequence. Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim.

App. 2004).

        Mitchell was charged with manslaughter.        A person commits the offense of

manslaughter if the person recklessly causes the death of an individual. TEX. PENAL

CODE ANN. § 19.04 (West 2011). One of the issues in this case is whether Mitchell

recklessly caused Schroeder’s death. Her defense was that she had the signal for a

protected left turn and therefore was not at fault. In essence, her contention was that

she was not at fault for causing the fatal collision.        Fault, therefore, is a fact of

consequence.        At a minimum, the question regarding whether Clark determined

liability, even if determined under the burden of proof for a civil trial, allows for an

inference of fault, thus providing a ‛small nudge‛ toward proving Mitchell was at fault

in causing Schroeder’s death. Accordingly, the trial court did not err in overruling

Mitchell’s objection to the relevance of the State’s question.

Rule 403 Balancing Test

        Although relevant, evidence may still be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence. TEX. R. EVID. 403; Solomon v. State, 49 S.W.3d 356, 366 & n.26 (Tex.

Crim. App. 2001). The balance between the probative value and the countervailing

factors set out in Rule 403 is in favor of the admission of otherwise relevant evidence.


Mitchell v. State                                                                   Page 11
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). But, relevant evidence

may be excluded if its probative value is not worth the problems that its admission may

cause. Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006).

        A trial court, when undertaking a Rule 403 analysis, must balance (1) the

inherent probative force of the proffered item of evidence—that is, how strongly it

serves to make more or less probable the existence of a fact of consequence to the

litigation—along with (2) the proponent's need for that evidence against (3) any

tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of

the evidence to confuse or distract the jury from the main issues, (5) any tendency of the

evidence to be given undue weight by a jury that has not been equipped to evaluate the

probative force of the evidence, and (6) the likelihood that presentation of the evidence

will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco, 210 S.W.3d at 641-642.

        Probative Force & Need

        Based on the facts of this case, evidence that Mitchell’s insurance company

accepted liability did not make the issue of Mitchell’s fault in the collision substantially

more probable and was not that essential for the State’s case. The State had ample other

proof of Mitchell’s fault in evidence. Two police officers had already testified that

Mitchell was issued a citation for failure to yield right of way because, after talking to

individuals at the scene, including Mitchell who said she had a solid green light, they


Mitchell v. State                                                                    Page 12
concluded that Mitchell was at fault.       The officers had also talked with Mitchell’s

daughters at the scene and neither of them, at that time, said Mitchell had a green

arrow. It was not until three days later at an interview with police that Mitchell first

claimed to have a green arrow as opposed to a solid green light. On the other hand,

Mitchell’s husband, Gregory, testified at trial that, although he was not present at the

scene, he heard over his cell phone Mitchell and their daughters say that Mitchell had a

green arrow.        While contradictory to what others had heard or seen, Gregory’s

testimony and Mitchell’s change in her story did not, ultimately, undermine the State’s

case. Thus, while it’s probative force was not particularly great, the State needed to

present all the available evidence to establish Mitchell’s responsibility for the collision.

In this regard, the evidence was somewhat important because a third party with a

financial interest aligned with Mitchell had, nevertheless, determined that Mitchell, and

therefore, the insurance company, was liable under the policy.

        Decision on an Improper Basis/Confuse or Distract the Jury/Undue Weight

        Evidence of insurance coverage is not normally admissible to show a person

acted negligently or otherwise wrongfully. TEX. R. EVID. 411. The theory behind Rule

411, for its application in a civil case, is that a jury is more apt to render a money

judgment against a defendant and for a larger amount if it knows that the defendant is

protected by insurance. AccuBanc Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 151 (Tex.

App.—Fort Worth 1996, writ denied). However, in this criminal case, evidence of


Mitchell v. State                                                                    Page 13
Mitchell’s insurance coverage had already been introduced without objection. But the

question asked by the State and answered by Clark went one step further. It was not

simply a coverage question; rather, it was whether Mitchell’s insurance company

determined and accepted liability.       And we note that Mitchell, through cross

examination of Clark, informed the jury that Clark determined Mitchell to be more than

fifty percent responsible, and therefore, accepted liability for the damages done.

Although this type of evidence could have a tendency to suggest a decision on an

improper basis in a criminal case, the trial court could have reasonably concluded that

in this case, it did not.

        The state of the record must be taken into consideration. As noted above, two

police officers already testified that they thought Mitchell was at fault in the collision.

The jury had also heard Schroeder’s wife, Mary, testify that she was following

Schroeder on Lake Shore Drive and was positive that Schroeder’s light was green when

Schroeder entered the intersection. The jury further heard from Randy McLaughlin

who was in the first vehicle at the light on Martin Luther King, Jr. Blvd. where it

intersects with Lake Shore Drive. He stated that his light was red and that traffic was

flowing in both directions on Lake Shore Drive. He also stated that he had traveled on

both Martin Luther King, Jr. Blvd. and Lake Shore Drive frequently; and based upon his

familiarity with the intersection, he believed that Mitchell did not have a green arrow

when she turned from Lake Shore Drive to Martin Luther King, Jr. Blvd.


Mitchell v. State                                                                   Page 14
        Therefore, because of what the jury had already heard before Clark testified, the

trial court could have reasonably concluded that the testimony would not have a

tendency to confuse or distract the jury or that it would be given undue weight by the

jury.

        Undue Delay and Needless Presentation of Cumulative Evidence

        Although the State had similar evidence from which the jury could conclude that

Mitchell was at fault, the question presented by the State and Clark’s answer did not

consume an inordinate amount of time.

        Conclusion

        After balancing the Rule 403 factors, the trial court could have reasonably

concluded that the probative value of Clark’s determination of liability was not

substantially outweighed by the danger of unfair prejudice.

        By our decision, we do not mean to say that a determination of liability by a

defendant’s insurance carrier will always be admissible in the face of a Rule 403

objection. Our decision is and must be limited to the facts of this particular case. It may

be that, in an appropriate case, a trial court could reasonably conclude that the

probative value of a determination of liability by a defendant’s insurance carrier is




Mitchell v. State                                                                   Page 15
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.1

        Mitchell’s second issue is overruled.

                                           PUBLIC TRIAL

        Mitchell argues in her first issue that her right to a public trial was denied when

her aunt was excluded from the punishment phase of the trial. At the beginning of the

punishment phase, outside the presence of the jury, Mitchell’s aunt, Doris Burkley, was

excluded from the courtroom and the courthouse because of comments she had made to

a local TV news station the night before, after the jury verdict of guilt had been

returned. Mitchell did not object to Burkley’s exclusion.

        As a prerequisite to presenting a complaint for appellate review, the record must

show that the complaint was made to the trial court by a timely request, objection, or

motion. TEX. R. APP. P. 33.1. Constitutional guarantees can be waived by failure to

object at trial. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Saldano v.

State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002); Rodriguez v. State, No. 04-04-00230-CR,

2005 Tex. App. LEXIS 2959, *2-5 (Tex. App.—San Antonio Apr. 20, 2005, pet. ref’d)

(mem. op.) (not designated for publication) (right to public trial). In addition, we do not

consider the defendant's right to a public trial to be one of the few "systemic


1Although not argued by the State, we note that the trial court may have concluded that because of the
prior introduction of evidence about insurance coverage in this proceeding, the jury could have been
confused or left to speculate about liability and thus admitted the evidence to avoid confusion or
speculation.

Mitchell v. State                                                                             Page 16
requirements" that a trial court must follow even if the parties wish otherwise, nor do

we consider it a "waiveable" right which must be implemented unless expressly waived.

See Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004). Accordingly, we hold

that by failing to object at the time the trial court excluded only one person from

Mitchell’s trial, Burkley, Mitchell waived her right to present this complaint on appeal.

See McEntire v. State, 265 S.W.3d 721, 723 (Tex. App.—Texarkana 2008, no pet.); see also

Levine v. United States, 362 U.S. 610, 619-20, 4 L. Ed. 2d 989, 80 S. Ct. 1038 (1960)

(concluding that general objection to the nature of the proceedings was insufficient to

alert the trial court to public trial objection, thus appellant did not preserve error for

review).

        Mitchell’s first issue is overruled.

                                         CONCLUSION

        Having overruled each issue, we affirm the judgment of the trial court.




                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 9, 2011
Publish
[CR25]



Mitchell v. State                                                                  Page 17
