                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00038-CR
                               No. 10-13-00039-CR

CHAD ROBERT MCFADDEN,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee


                      From the 272nd District Court
                           Brazos County, Texas
         Trial Court Nos. 10-01424-CRF-272 and 12-04175-CRF-272


                         MEMORANDUM OPINION

      In October 2010, Appellant Chad McFadden pleaded guilty pursuant to a plea

agreement to taking wildlife resources without consent of the landowner. See TEX.

PARKS & WILD. CODE ANN. § 61.022 (West Supp. 2013). The trial court deferred an

adjudication of guilt and placed McFadden on community supervision for two years.

      In August 2012, McFadden was charged by indictment with the offense of

continuous violence against the family. See TEX. PENAL CODE ANN. § 25.11 (West 2011).

The State subsequently filed an “Amended Motion to Proceed with Adjudication of
Guilt and Sentence” on the taking-wildlife-resources offense, alleging McFadden

violated the terms and conditions of his community supervision. By agreement of the

parties, the motion to proceed on the taking-wildlife-resources offense and the jury trial

on the continuous-family-violence offense proceeded at the same time, with testimony

relating solely to the motion to proceed being held outside the jury’s presence.

       The jury found McFadden guilty of continuous family violence and assessed his

punishment at eight years’ confinement.         The trial court sentenced McFadden

accordingly. The trial court then held a punishment hearing on the motion to proceed

on the taking-wildlife-resources offense. The trial court ultimately found the allegations

in the motion to proceed to be true, adjudicated McFadden guilty, and sentenced him to

two years’ confinement in state jail, to run consecutively with the sentence in the

continuous-family-violence case. These appeals ensued.

                               Victim Impact Statements

       In his sole issue in the appeal of the taking-wildlife-resources case (No. 10-13-

00038-CR), McFadden contends that the trial court committed reversible error by

allowing improper victim impact statements. McFadden specifically argues that the

victim impact statements violated article 42.03, section 1(b) of the Code of Criminal

Procedure in the following ways:       (1) “[a victim impact statement] was given by

individuals [sic] not allowed by the statute to give one”; (2) “[t]he improper [victim

impact statements] were given before the punishment hearing was convened in the

[motion to proceed] case”; (3) “[t]he improper [victim impact statements] were given

before punishment was pronounced in both the new and old cases”; and (4) “[t]he Trial

McFadden v. State                                                                   Page 2
Court received a ‘response’ by [McFadden], not directed by him as a part of the

punishment phase of the [motion to proceed], but responding directly to the improper

[victim impact statements].”

       Generally, for a complaint to be preserved for appeal, the record must show that

the appellant made a timely request, objection, or motion and that the trial court ruled

on the request, objection, or motion. TEX. R. APP. P. 33.1(a). Even complaints about

constitutional errors may be forfeited by failure to raise the issues to the trial court.

Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Moreover, when an

appellant creates the impression that he is abandoning his objection, it is ineffective to

preserve the issue for appeal. Ramos v. State, 819 S.W.2d 939, 942 (Tex. App.—Corpus

Christi 1991, pet. ref’d); see Purtell v. State, 761 S.W.2d 360, 366 (Tex. Crim. App. 1988).

       Here, after the trial court sentenced McFadden in the continuous-family-violence

case, but before it held the punishment hearing in the motion to proceed on the taking-

wildlife-resources case, the following occurred:

                     THE COURT: ….
                     Victim impacts?

                     [Prosecutor]: Yes, Your Honor.

                   [Defense Counsel]: Judge, would it be proper for you to
       punish him before the victim impact?

                     THE COURT: I already have punished him.

                     [Defense Counsel]: Well, as to the MTP?

                     THE COURT: We’ll do the MTP in just a minute.

                     [Defense Counsel]: Okay. Yes, sir.

McFadden v. State                                                                       Page 3
                      THE COURT: Come on up.
                      Go right ahead.

                      (Victim impact statements made off the record.)

                    THE COURT: All right. We’ll now open the punishment
       phase of the Motion to Proceed.

Because McFadden did not object to the victim impact statements and pursue his

objection to an adverse ruling, his complaint that the trial court committed reversible

error by allowing improper victim impact statements is not preserved for appellate

review. See TEX. R. APP. P. 33.1(a). We overrule McFadden’s sole issue in the appeal of

the taking-wildlife-resources case (No. 10-13-00038-CR).

                                     Motion for Mistrial

       In his first issue in the appeal of the continuous-family-violence case (No. 10-13-

00039-CR), McFadden contends that the trial court committed reversible error when it

overruled his motion for mistrial resulting from alleged victim A.C.’s testimony that he

had been incarcerated in a state-jail facility.

       We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wead v. State, 129

S.W.3d 126, 129 (Tex. Crim. App. 2004). An appellate court must uphold the trial

court’s ruling if it was within the zone of reasonable disagreement. Wead, 129 S.W.3d at

129.   A mistrial is required only in extreme circumstances where the prejudice is

incurable. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A mistrial is the

trial court’s remedy for improper conduct that is so prejudicial that expenditure of


McFadden v. State                                                                   Page 4
further time and expense would be wasteful and futile. Hawkins, 135 S.W.3d at 77.

       The exchange in question was as follows:

             Q. [By Prosecutor] At some point did you and the defendant start
       hav[ing] a dating relationship?

              A.    Yes.

              Q.    When did that happen?

              A.    That probably started around June 2011.

             Q.    And during that time, were y’all consistent or would you
       break up and get back together?

              A.    There was [sic] a few breakups in between it.

              Q.    When was that?

              A.    When he was in state jail.

                    [Defense Counsel]: Objection, Your Honor.

                    [Prosecutor]: Your Honor, can we approach?

                    THE COURT:         Step into the jury room, ladies and
       gentlemen.

                    (The jury leaves the courtroom.)

                    [Prosecutor]: Judge, can we have the witness wait outside?

       ….

                    THE COURT: Step out in the hallway, young lady, if you
       don’t mind, and wait on us.

                    (The witness leaves the courtroom.)

                    (At the bench, on the record.)

                    [Prosecutor]: Judge, I didn’t intend for that. I was talking

McFadden v. State                                                                   Page 5
       about dates about when they were getting together.

                       [Defense Counsel]: About when they were not together.

                       [Prosecutor]: It wasn’t intentional ….

                       THE COURT: She said “state jail”; is that right?

                       [Defense Counsel]: Yes.

                    [Prosecutor]: Judge, I was intending for like dates of when
       they were breaking up.

                      THE COURT: I don’t think you intended it. She just rolled
       that in on us, I’m afraid.

                       [Defense Counsel]: Judge, I ask for a mistrial.

                       THE COURT: Is that eventually going to come out anyway?

                       [Defense Counsel]: I’m trying like hell to keep it out.

       ….

                       [Prosecutor]: Judge, I would ask you to have an instruction
       to disregard.

                     [Defense Counsel]: Judge, that’s impossible to disregard
       that. I mean, all of them sit around and talk to during voir dire about
       what if he got priors, if he got a prior.

       ….

                     [Prosecutor]: Judge, I don’t know if it’s going to come in
       he’s been to state jail or not. It’s possible it could be raised, but I think an
       instruction to disregard would cure any error.

                       [Defense Counsel]: Judge, you can’t disregard that.

                    THE COURT: How about some case law on this? I think
       we’re going to need to look up some stuff on this.

                       [Prosecutor #2]: You want to give the jury a break for a

McFadden v. State                                                                         Page 6
       while, Judge?

                   THE COURT: Yeah. How long do you think we need to
       give them? How long do you think we need to give them?

                       [Prosecutor #2]: Thirty minutes.

                       [Defense Counsel]: I guess.

                    THE COURT: Thirty minutes. Tell them we’re not going to
       be back with them for 30 minutes. They can walk around, whatever they
       want to do. Be back in 30 minutes.

                       (Break from 9:32 AM to 9:50 AM.)

       ….

                       (Recess taken from 10:01 AM to 10:20 AM)

       ….

                     THE COURT: All right. Here’s what I’m going to do. I’m
       going to sustain your objection. I’m going to give the jury an instruction
       to disregard, and I’m going to take your motion for mistrial under
       advisement. And I may grant it at the end of the evidence, if looking back
       -- I may or may not grant it depending on how the evidence develops in
       the case. For now, it will be denied.

       ….

                       (Break had from 10:31 AM to 10:34 AM.)

       ….

                       (The jury enters the courtroom.)

                     THE COURT: Be seated.
                     All right, ladies and gentlemen, I have an instruction for you
       at this time. You are hereby instructed to disregard the last answer of the
       witness. Strike it from your mind and do not consider it in your
       deliberations for any purpose.

       Testimony that refers to or implies extraneous offenses can be rendered harmless

McFadden v. State                                                                     Page 7
by an instruction to disregard by the trial court, unless the evidence was so clearly

calculated to inflame the minds of the jury or is of such damning character as to suggest

it would be impossible to remove the harmful impression from the jury’s mind. Kemp v.

State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Harris v. State, 164 S.W.3d 775, 783

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). McFadden argues that while A.C.’s

statement may not have been intentionally elicited by the prosecutor, A.C. intentionally

made the statement that McFadden had been “in state jail.” But even if A.C.’s statement

was intentional, it was not embellished in any manner.                  The uninvited and

unembellished       reference   to   McFadden’s   incarceration   was    therefore   not   so

inflammatory as to undermine the efficacy of the trial court’s instruction to disregard.

See Kemp, 846 S.W.2d at 308 (holding witness’s testimony, “this caller also provided

information that she had a son … who had recently been released from the

penitentiary,” was not so inflammatory as to undermine efficacy of trial court’s

instruction to disregard); Harris, 164 S.W.3d at 783 (holding witness’s testimony, “Since

the last time [appellant] got out of jail.        Like he got out in 2000,” was not so

inflammatory as to undermine efficacy of trial court’s instruction to disregard).

Furthermore, although a little over an hour elapsed between A.C.’s statement and the

instruction to disregard, the trial court gave the instruction to disregard immediately

when the jury returned and was careful not to refresh or reinforce the jury’s memory of

the content of the statement.

       The trial court did not abuse its discretion in denying McFadden’s motion for

mistrial. We overrule McFadden’s first issue in the appeal of the continuous-family-

McFadden v. State                                                                      Page 8
violence case (No. 10-13-00039-CR).

                                    Opening the Door

       In his second issue in the appeal of the continuous-family-violence case (No. 10-

13-00039-CR), McFadden contends that the trial court committed reversible error when

it concluded that his trial counsel “opened the door” to extraneous offenses during his

trial counsel’s initial cross-examination of Fort Worth Police Officer Mitchell Ellis.

       Under Rule 404(b), evidence of other crimes, wrongs, or acts is inadmissible “to

prove the character of a person in order to show action in conformity therewith.” TEX.

R. EVID. 404(b).    Rule 404(b) also provides, however, that the evidence may be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Id. When the accused

claims self-defense, the State, to show the accused’s intent, may therefore introduce

evidence of other violent acts where the defendant was an aggressor. Halliburton v.

State, 528 S.W.2d 216, 219 (Tex. Crim. App. 1975) (op. on reh’g); Jones v. State, 241

S.W.3d 666, 669 (Tex. App.—Texarkana 2007, no pet.). We review the trial court’s

decision to admit or exclude evidence under an abuse of discretion standard. McDonald

v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

       McFadden’s defense counsel cross-examined Officer Ellis as follows:

              Q.      Now, I want to be real clear. You are stating that those
       pictures that were shown -- I think one time there was an interchange that
       said that those pictures consistent with the victim, and I think one time it’s
       said those pictures were consistent with someone being struck. I mean,
       you can’t tell a victim from, what, just by looking at a picture, can you?

              A.     No.

McFadden v. State                                                                        Page 9
                Q.   That’s just consistent with someone being struck?

                A.   Correct.

       ….

                Q.   Now, do you put great weight on who calls 911 first?

              A.      I took it into consideration. The fact that he didn’t call 911,
       he didn’t -- he didn’t go to the emergency room, he was still -- he had just
       gotten in his truck and remained in the area the whole time.

                Q.   But he did leave the situation?

                A.   Correct.

                Q.   And eventually he did go to the emergency room, right?

                A.   Yes.

                Q.   You called an ambulance there and he was transported,
       right?

             A.      Right. Mr. McFadden requested that I call an ambulance.
       And after I removed him from his truck, I then notified dispatch to have
       an ambulance come to [the] scene.

                Q.   And you accompanied him to the --

                A.   Yes.

                Q.   So you were there the whole time he was in the hospital?

             A.    I wasn’t there the whole time. I had to go to the jail to finish
       paperwork, so I had another unit relieve me while he was at the hospital.

              Q.     And to make an arrest, I guess, the level of proof or amount
       of evidence, you just have to have probable cause, correct?

                A.   Correct.

                Q.   And were there -- I mean, you took pictures of [A.C.], but

McFadden v. State                                                                       Page 10
       there were also pictures taken of Mr. McFadden?

              A.     Yes, sir.

       After Officer Ellis testified, the State rested its case. The following exchange then

occurred outside the presence of the jury:

                    [Prosecutor]: Judge, I think [Defense Counsel] has clearly
       opened the door to the extraneous offenses by questioning him about the
       defensive injuries, having to call an ambulance, having to go to the
       hospital. You opened the door and raised self-defense, and we get to --

                    [Defense Counsel]:       I have not raised self-defense in any
       way, shape, or form.

                     [Prosecutor]: Yes, you did by mentioning -- that’s what this
       case law says. We were careful in how we did it.

                     [Defense Counsel]: I was more than careful …. I’m not
       going to lay over for that. I did not do any of that.

The trial court eventually decided to hold a hearing on the issue after which it ruled

that defense counsel’s “questions concerning the emergency ambulance, taking to the

hospital, taking pictures of him opens self-defense.”

       McFadden would have us focus only on the foregoing in deciding this issue. But

despite the trial court’s ruling, the discussion continued:

                     [Prosecutor]: Judge, I have Mike Watson on the way….

       ….

                      [Defense Counsel]: Watson is about extraneous stuff, Judge.
       This is their ambush deal, to set all these witnesses up, just bring them all
       in here and talk about how horrible he is.

                     THE COURT: Unfortunately, that’s the law.

                     [Defense Counsel]:      Well, no -- well, we have to have a

McFadden v. State                                                                      Page 11
       hearing about the relevance of all these things. It doesn’t automatically
       open the door up.

                    [Prosecutor #2]: I thought that’s what we were doing now,
       Judge.

                     THE COURT: We are going to have the hearing, if we need
       to have another hearing. But then after the hearing, can we put the
       witness on if I rule against you? Do you have a problem with that?

                    [Defense Counsel]: Of them re-opening their case?

                   THE COURT: Okay, yeah, do you have a problem with
       them re-opening their case?

                    [Defense Counsel]: Yes, sir.

                     THE COURT: Let’s go ahead and get her on the stand, and
       we’ll rule on all that other later.

       McFadden then presented his case-in-chief. During his case-in-chief, McFadden

questioned A.C. about injuries she may have given to him during an altercation. He

asked if A.C. had bitten McFadden on the knee and if she had grabbed his testicles; A.C.

replied that she had. In response to McFadden’s questioning, A.C. denied biting his

arm but said that she possibly could have scratched his stomach in the struggle.

McFadden also asked A.C. if there were any instances when she called a friend to come

over to calm her down. A.C. said that she did not recall any such times. McFadden also

asked Officer Ellis about McFadden’s injuries during his case-in-chief. In response to

McFadden’s questioning, Officer Ellis testified that McFadden had a bite mark on his

arm, scratches on his chest, bruising on his knees, a cut to his foot, and pain in his

scrotum.

       McFadden then called Daniel Ostertag to testify. Ostertag testified that he heard

McFadden v. State                                                                  Page 12
“rambling around in the room” and McFadden say, “[A.C.], get off me. Leave me

alone.” Ostertag said that when they came out of the bedroom, he saw A.C. rush at

McFadden. As McFadden then tried to leave the apartment, A.C. ran after him and sat

down and held herself against one of his legs. Ostertag again heard McFadden saying,

“[A.C.], get off me.”

       When McFadden concluded his case-in-chief, the trial court asked his defense

counsel if he was going to rest. McFadden’s defense counsel replied, “Yes, sir. And I

guess before they start rebutting with anything has to do with extraneous, I would like

a hearing about all that.” The trial court then held another hearing on the issue. During

the hearing, the following exchange took place:

                     [Defense Counsel]: I understand the State’s position that if a
       defensive theory is raised, which back when the Court said it was raised,
       we had a little bit of an argument about that.

                        THE COURT: Well, we’re having the same argument now.

                     [Defense Counsel]: Yes, I guess we’re just carrying it along.
       Perpetual argument.
                     See it’s that time, Judge. After that then that’s when the
       State brought in the deal with self-defense. I mean, that’s when they
       introduced, I guess, kind of just saying I opened the door to it or barely
       raised it. They just slammed it in.

                    THE COURT: Well, you brought in, as I recall, that he was
       injured and an ambulance was called and he was taken to the hospital by
       the ambulance and the officer took some pictures of him.

                        [Defense Counsel]: Then the State -- [Prosecutor #2] brought
       --

                        THE COURT: That’s pretty strong evidence of injury right
       there.


McFadden v. State                                                                      Page 13
                      [Defense Counsel]: Well, I agree. Let’s just say the defensive
       theory has been raised.
                      Now, past that point, after that, I mean, I haven’t -- that was,
       I believe, [Prosecutor #2] that kept saying to Daniel, “She was the
       aggressor?” I never used that term. I said, “So what did you seen then?”
       “I saw her run out and then they collided.” And [Prosecutor #2]’s
       statement was “bull rushed.” That was not anything I brought up.
                      But other than that, I mean, with [A.C.] on the stand, I never
       questioned her about her being the initial aggressor. “Did you ever hit
       him first?”
                      What I’m saying, I agree that it’s raised, but there’s different
       levels of raising it, I guess. You can just totally overwhelm the State’s case
       with it. Or it’s barely been raised.
                      That’s something the Court needs to take into consideration.
       It doesn’t automatically come in. There’s still probative versus prejudiced
       argument to be made. That’s, I guess, what I would like some articulation
       from the State of how it is -- I mean, they’re the proponent of it -- how it is
       more probative.

[Emphasis added.] The hearing continued with a discussion about the probative versus

prejudicial value of allowing the extraneous-offense evidence. The trial court ultimately

ruled, “All right. I’m going to let it in.” The extraneous-offense evidence was then

presented during the State’s rebuttal.

       McFadden failed to preserve this issue for appellate review because he created

the impression that he was abandoning any objection that he opened the door to

extraneous offenses by raising self-defense as a defensive theory. See Purtell, 761 S.W.2d

at 366. When the trial court revisited the issue after McFadden’s case-in-chief and

before the extraneous-offense evidence was presented, McFadden’s trial counsel stated

that he agreed that the self-defense defensive theory had been raised. His objection at

that time was that the probative value of the extraneous-offense evidence was

outweighed by its prejudicial effect. See TEX. R. EVID. 403. McFadden has not raised


McFadden v. State                                                                        Page 14
that issue on appeal.    Nevertheless, even if McFadden’s issue was preserved, we

conclude, in light of the evidence presented, that the trial court did not abuse its

discretion in admitting the extraneous-offense evidence to rebut his theory that A.C.

was the aggressor. See Halliburton, 528 S.W.2d at 219; Jones, 241 S.W.3d at 669. We

overrule McFadden’s second issue in the appeal of the continuous-family-violence case

(No. 10-13-00039-CR).

       We affirm the trial court’s judgments in each case.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 5, 2014
Do not publish
[CR25]




McFadden v. State                                                             Page 15
